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A  TREATISE 


ON    THE 


LA"W  OF  EASEMENTS, 


BY 


JOHN  LEYBOURN   GODDARD,  ESQ. 

OF  THE   3IIDDLE  TEMPLE,  BARRISTER  AT    L.VAV. 


MUCH  ENLARGED  FROM  THE  SECOND  ENGLISH  EDITION  OF  187/ 

BY 

EDMUND    H.    BENNETT,   LL.  D. 

PROFESSOR  OF  LAW  IN  THE  BOSTON  UNIVERSITY. 


BOSTON: 
HOUGHTON,  MIFFLIN  AND   COMPANY. 

1880. 


Copyright,  1880, 
Br  HOUGHTON,    MIFFLIN  AND  COMPANY 

T 

G 


The  Riverside  Press,  Cambridge: 
Printed  by  H.   O.  Houghton  and  Company. 


^       PREFACE  TO   THE   AMERICAN  EDITION. 


Of  the  English  treatises  on  Easements,  the  best  known  to 
the  American  profession  is  probably  that  of  Mr.  Gale.  Orig- 
inally issued  in  1839,  and  republished  here  in  1840,  it  has 
passed  through  five  editions  in  England,  the  latest  being  in 
1876.  But  these  very  facts  furnish  some  reasons  why  it  is 
not  now  the  most  desirable  basis  of  an  American  work.  The 
law  is  a  progressive  science,  and  much  advancement  is  notice- 
able in  the  law  of  easements  during  the  last  forty  years. 
Any  book  written  from  the  standpoint  then  existing  is  not 
so  well  adapted  to  the  present  time  as  one  more  i;ecently  and 
freshly  prepared.  Besides,  the  work  of  Mr.  Gale  has,  since 
his  death,  been  revised  by  different  successive  editors,  whose 
notes  and  additions  have  been  prepared  on  quite  different  and 
not  altogether  harmonious  plans,  and  the  original  text  is  now 
so  overlaid  with  additions  as  to  seem  almost  lost  in  the  more 
extended  commentaries  thereon. 

Mr.  Goddard's  treatise  was  first  written  in  1871,  and 
reached  a  second  edition  in  1877.  It  has  been  declared  by 
high  judicial  authority,  Cockburn,  C.  J.,  in  Angus  v.  Dal- 
ton,  3  Q.  B.  Div.  113,  to  be  "  a  learned  and  able  treatise." 
It  discusses  the  subject  in  a  natural  and  philosophical  order, 
treating  :  First,  of  the  definition  and  nature  of  Easements  ; 
second,  of  the  various  methods  of  acquiring  them  ;  third,  of 
the  mode   and  extent  of  their  enjoymejit ;  fourth,   of  their 


t  71  VOO 


IV  PREFACE   TO   THE   AMERICAN   EDITION. 

disturbance,  and  the  remedy  therefor ;  lastly,  how  they  may 
be  lost  or  extinguished. 

Each  of  these  topics  is  treated  first,  generally,  as  applicable 
to  all  easements  ;  and  subsequently  as  it  relates  to  each  spe- 
cific easement,  in  alphabetical  order  :  viz.,  air,  light,  support, 
watercourses,  and  ways. 

There  is  some  liability  to  repetition  in  this  method,  but  not 
more  perhaps  than  when  each  branch  is  fully  discussed  by  it- 
self alone,  since  illustrations  from  other  branches  must  even 
then  be  constantly  resorted  to. 

Mr.  Goddard's  work  has  also  the  merit  of  confining  itself 
strictly  to  the  subject.  He  has  not  been  led  aside  to  discuss, 
except  to  distinguish,  the  law  of  Natural  Rights,  the  right 
of  Profit  a  Prendre  ;  nor  even  Licenses  ;  rights  which,  though 
much  analogous  to  easements,  cannot  strictly  be  called  such. 
It  is,  however,  purely  an  English  work,  only  a  single  Ameri- 
can case,  that  of  Tyler  v.  Wilkinson,  4  Mason,  397,  being 
cited  by  the  author. 

In  preparing  this  edition  the  undersigned  has  generally  fol- 
lowed the  plan  of  the  original  work ;  the  American  law  being 
sometimes  interwoven  into  Mr.  Goddard's  text,  and  some- 
times added  in  a  separate  chapter  or  section,  as  the  subject 
seemed  to  require.  In  some  important  particulars  the  Ameri- 
can law  is  quite  different  from  the  English,  especially  on  the 
subject  of  prescription.  We  do  not  adopt  the  common  law 
of  England  as  to  a  prescriptive  right  to  light  and  air,  support 
of  buildings,  and  the  like ;  nor  do  we  have  any  statute  analo- 
gous to  the  English  statute  of  1832,  commonly  called  the 
Prescription  Act,  which  has  wrought  great  changes  in  the 
common  law  of  England,  but  which  has  been  declared  to  have 
"  introduced  greater  doubt  and  confusion  than  existed  before 
its  enactment." 

The  modern  English  decisions  on  the  subject  of  easements 


PREFACE   TO   THE   AMERICAN   EDITION.  V 

by  prescription  having  necessarily  been  largely  controlled  by 
the  statute,  it  seemed  proper  to  collect  in  this  edition  the  com- 
mon law  decisions,  and  they  are  stated  together  in  a  section 
commencing  on  page  133.  The  American  doctrine  of  acquir- 
ing an  easement  of  light  and  air,  both  by  implied  grant  and 
prescription,  is  quite  fully  presented  on  pages  192  to  210. 
The  difference  between  the  English  and  American  law  of 
support  for  buildings  is  also  indicated  at  pages  231  to  236. 
About  one  hundred  pages  have  been  added  to  the  body  of  the 
book,  and  over  five  hundred  cases  newly  cited.  It  has  not 
been  thought  necessary  to  accumulate  all  the  American  au- 
thorities upon  well  settled  elementary  points,  and  perhaps 
some  have  been  improperly  omitted  ;  if  so  the  undersigned 
would  feel  under  obligations  to  any  one  informing  him  of  the 
fact.  The  recent  English  cases  have  also  been  referred  to, 
and  those  as  well  as  the  American  are  indicated  by  figures^ 
•while  those  of  the  author  are  denoted  by  letters.  If  this  is 
objectionable  it  seemed  less  so  than  to  disfigure  the  page  by 
the  use  of  brackets,  and  the  additions  of  the  editor  may  be 
suflBciently  distinguished  for  all  practical  purposes  by  the  sim- 
ple device  above  noted.  An  entirely  new  and  full  index  has 
been  prepared  by  my  friend,  Mr.  John  E.  Wetherbee,  of  the 
Suffolk  Bar,  to  whom  also  I  am  much  indebted  for  a  careful 
reading  of  the  proof-sheets,  and  other  assistance. 

Edmund  H.  Bennett. 

Boston,  July  1,  1880. 


PREFACE. 


On  the  publication  of  the  second  edition  of  this  treatise  I 
may  be  permitted  again  to  refer  to  my  original  work  on  the 
law  of  easements,  as  it  was  from  that  the  present  book  took 
its  origin.  In  the  year  1867  I  was  appointed  by  the  late 
Digest  of  Law  Commissioners  to  prepare  one  of  the  three 
specimens  of  digests  they  were  desirous  of  having  made,  in 
order  to  test  the  practicability  of  making  a  digest  of  the 
whole  law  of  England,  and  to  ascertain  the  best  form  and 
mode  of  executing  that  great  work.  The  three  subjects  upon 
which  the  Commissioners  determined  to  perform  their  experi- 
ment were  Bills  of  Exchange,  Mortgages,  and  Easements, 
and  the  subject  on  which  I  was  appointed  to  write  was  Ease- 
ments. 

To  prepare  this  specimen  digest  I  made  a  complete  search 
through  the  whole  of  the  common  law  and  equity  reports 
from  the  time  of  Queen  Elizabeth  to  the  then  present  date, 
the  number  of  volumes  being  upwards  of  eight  hundred  ;  each 
case  I  found  on  the  subject  was  carefully  read,  and,  with  notes 
of  its  subject-matter,  registered,  and  I  wrote  my  specimen  di- 
gest from  the  materials  thus  collected.  On  the  completion 
of  my  work  the  Commissioners  made  their  report,  in  which 
they  recommended  that  the  digest  of  the  English  law  should 
be  proceeded  with.  As  there  were  no  signs  of  this  ecom- 
mendation  being  immediately  carried  out,  and  as  the  speci- 


VIU  PREFACE. 

men  digests  were  not  published  as  it  was  expected  they  would 
be  after  revision  by  the  Commissioners,  I  determined  to  write 
the  present  treatise  on  the  subject  to  which  I  had  devoted  so 
much  attention.  I  adopted  the  same  general  plan  for  my 
book  that  I  had  used  for  my  specimen  digest,  as  I  believed  it 
embraced  the  whole  subject  of  the  law  of  easements,  and  yet 
did  not  admit  collateral  topics,  a  fault  to  which  I  cannot  but 
think  some  text-books  have  a  tendency.  The  form  of  the 
text  was  necessarily  changed,  but  the  divisions  into  chapters 
and  sections  were  retained.  Thus  the  whole  subject  will  be 
found  divided  into  five  chapters,  explaining  —  first,  the  nature 
of  easements  ;  secondly,  the  various  modes  of  acquiring  them  ; 
thirdly,  their  extent  and  mode  of  user  ;  fourthly,  their  disturb- 
ance and  the  remedies  appointed  by  law  for  such  injuries  ;  and 
fifthly,  their  extinction,  suspension,  and  revival.  As,  how- 
ever, many  principles  of  law  apply  to  easements  of  all  kinds, 
but  some  apply  only  to  easements  relating  to  the  air,  light, 
support,  water,  or  ways,  it  was  necessary  to  divide  each  chap- 
ter into  two  parts  or  sections,  one  relating  to  easements  gener- 
ally, and  the  other  to  these  special  kinds  of  easements,  and  in 
the  second  section  of  each  chapter  to  treat  of  each  of  these 
particular  easements  separately.  This  will  explain  the  ar- 
rangement of  my  work. 

Though  I  believe  the  arrangement  adopted  enabled  my 
book  to  embrace  the  whole  subject  of  easements,  it  has  been 
my  endeavor  to  avoid  wandering  into  collateral  topics.  This 
has  been  one  great  aim  I  had  in  view,  both  when  I  wrote  for 
the  Digest  of  Law  Commission  and  also  when  I  composed 
this  work  ;  but  it  was  frequently  difiicult  to  know  where  ex- 
actly to  draw  the  line  to  mark  the  proper  limits  of  deviation» 
and  yet  to  keep  from  straying  into  by-paths,  for  there  are 
many  rights  of  a  character  closely  allied  to  easements  —  for 
instance,  profits  a  prendre  and  highways,  —  and  many  wrongs 


PREFACE.  ix 

to  which  disturbance  of  easements  has  a  tendency  to  lead  — 
as  trespass  and  nuisances,  —  which  hold  out  strong  induce- 
ment to  wander  from  the  straight  path  and  say  something  of 
those  other  matters  in  passing.  The  very  favorable  recep- 
tion which  my  work  has  met  with,  although  the  ground  on 
which  it  treads  was  already  occupied  by  another  treatise  of 
acknowledged  merit,  leads  me  to  think  I  did  not  do  wrong 
in  framing  my  work  on  the  plan  I  adopted. 

It  remains  for  me  merely  to  add  that  all  the  cases  which 
have  appeared  in  the  Law  Reports,  or  the  Law  Journal  Re- 
ports, up  to  the  end  of  1876,  are  included  in  this  edition,  and 
two  or  three  cases  more  recently  reported  have  been  introduced 
as  the  book  was  going  through  the  press ;  and  for  every  case 
cited  a  reference  has  been  given  to  the  Law  Journal  Re- 
ports, if  the  case  is  reported  there,  in  addition  to  the  reference 
to  the  regular  series,  or  to  the  Law  Reports,  in  which  the  same 
case  appears.  It  may  also  be  added  that  the  new  method  of 
citing  the  Law  Reports  appointed  since  the  formation  of  the 
High  Court  of  Justice  has  been  adopted. 

J.  L.  G. 

2  Harcourt  Buildings,  Temple. 
March,  1877. 


TABLE  OF   CONTENTS. 


CHAPTER  I. 

ON  THE  NATURE  OF  EASEAffiNTS. 

Sect.  1.  —  On  the  Nature  of  Easements  generally. 

PAQB 

Misuse  of  the  word  "  Easement " 1 

Definition  of  "  Easement  "........  i 

"  Natural  Rights " 2 

"  Licenses " 3 

An  easement  is  a  jon'yjVe^'e 4 

Without  profit g 

No  easements  in  gross 7 

Not  universally  true  in  America 10 

"  Dominant' and  "  5eri'/en<  "  tenements  and  owners  .        .        .        .11 

Dominant  and  servient  tenements  f//5/j«d 11 

Easements  henejicial  to  dominant  tenement 14 

No  easement  for  benefit  of  servient  tenement 16 

Obligation  on  servient  owner  to  suffer  or  refrain  from  doing  something  1 7 

Customs 18 

New  species  of  easements 21 

Easements  adverse  to  natural  rights 23 

Inconsistent  easements 24 

Subordinate  easements 25 

Easements  of  necessity         .........  25 

When  easements  of  necessity  are  permitted 26 

Sect.  2.  —  On  the  Nature  of  Particular  Easements. 

AIR. 

Rights  in  connection  with  air 28 

Free  passage  of  air 28 

Purity  of  air 29 

Right  to  pollute  air 29 

Limit  of  the  natural  right  to  purity  of  air 29 

Pollution  of  air,  when  justifiable •        .  30 


xu 


TABLE   OF   CONTENTS. 


Light,  air,  and  water  compared 
Right  to  open  windows  to  admit  light  and  air 
Right  to  have  light  and  air  unobstructed  \ 
Right  to  lio-ht  and  air  is  an  easement 


SUPPORT. 


Natural  right  to  support  ..... 

Nature  of  the  natural  right  to  support 

Natural  right  to  support  is  absolute  and  unlimited 

"What  is  adjacent  land         ..... 

Deprivation  of  natural  right  to  support  by  statute 

Effect  on  natural  right  to  support  of  building  and  excavating 

Support  from  underground  water  to  surface  land 

Support  from  underground  water  to  surface  water 

Easement  of  support  for  buildings    . 

Easement  of  support  for  excavated  land 

Effect  of  contiguity  of  buildings 

Right  to  deprive  land  of  support 

WATER. 

Easements  in  connection  with  water 

Natural  and  artificial  sti'eams       .... 

Water  from  a  natural  source  in  a  natural  course 
In  an  artificial  course  ...... 

Artificial  supply  to  natural  stream    . 

Natural  rights  and  easements  in  water 

"  Riparian  "  land,  owners,  proprietors,  and  rights 

Riparian  rights  incident  to  the  whole  riparian  estate 

Partition  of  a  riparian  estate    .... 

Grant  of  riparian  rights       .         .         .         . 

Intermittent  streams 

Obligation  of  landowner  at  the  source  of  a  stream 
Course  of  stream  must  be  known  and  defined  . 
Natural  right  to  the  flow  of  water 
Natural  right  altered  by  easements  . 

Wright  V.  Howard 
Right  to  have  streams  diverted 
Diversion  of  flood-water 
Diversion  of  the  flow  of  the  sea 
Obligation  to  maintain  sea-walls 
Tidal  rivers      ..... 
Right  to  pour  water  over  land 
Flow  of  underground  water 


PAGE 

31 
32 
33 
33 


34 
34 
35 
86 
37 
38 
39 
40 
41 
43 
43 
44 


48 
48 
48 
48 
51 
51 
52 
52 
53 
53 
53 
54 
54 
56 
56 
57 
53 
59 
59 
59 
60 
61 
61 


TABLE    OF   CONTENTS.  xiii 

PAGE 

Acton  r.  Blundell 62 

Water  collected  in  a  well 64 

Underground  water  affecting  surface  streams       .         .         .         .         .66 

Natural  right  to  purity  of  water        .         .         .  .         .         .         ,  67 

Purity  of  water  trickling  over  land  or  percolating  through  the  soil       .  68 

The  right  to  take  water  for  use         .         .         .         .         .         .         .  69 

Natural  right  to  use  water   .........  69 

Limit  to  natural  right  to  use  and  consume  water      ....  70 

Nature  of  the  right  to  take  water 70 

WAYS. 

No  natural  rights  of  way  .........  72 

Public  and  private  ways       .........  72 

Effect  of  rights  of  way  on  rights  of  landowner  ....  73 

Coexisting  rights  of  way 75 

Public  way  over  preexisting  private  way 75 

Ways  of  necessity         ..........  76 

Rights  of  way,  general  or  limited 77 

MISCELLANEOUS    KIGHTS. 

Attempts  to  create  new  species  of  easements       .         .         .        .        .77 

Uninterrupted  prospect     .........  79 

View  of  a  shop-window        .........     82 

Undisturbed  privacy         .........         84 

Obstructing  bow  windows 84 


CHAPTER  II. 

ON  ACQUISITION  OF  EASEMENTS. 

Sect.  l.  —  On  Acquisition  of  Easements  generally. 

Distinction  between  easements  and  natural  rights    ....  86 

Modes  of  creation  and  acquisition  of  easements  .         .         .         .  .87 

Easements  must  be  created  by  deed,  actual  or  presumed          .         .  88 

Covenants  by  landowners     .         .         .         .         .         .         .         .  .89 

Breach  of  contract  for  an  easement  not  under  seal  ....  90 

Grant  of  licenses  by  parol    . 90 

Implied  from  acquiescence        .         .         .         .         .         .         .         .  91 

Implied  from  surrounding  circumstances 92 

ACQUISITION    OF    EASEMENTS    BY    GRANT. 

Acquisition  by  grant,  express  or  implied 92 


XIV 


TABLE   OF   CONTENTS. 


Grant  by  one  tenant  to  another 

Derogation  from  grant  by  preventing  an  easement  . 

Estoppel  from  denying  an  easement     ...... 

Easements  may  be  granted  for  a  limited  time  .... 

Acquisition  by  express  grant 

Express  grant  by  particular  description  ..... 

Express  grant  by  general  words  ....... 

"  Appurtenances  ";  what  will  pass  by  the  word 

What  will  not  pass 

"When  ^yasi-easements  will  pass  under  general  words 

Grant  of  easements  "  used  and  enjoyed  " 

Easements  first  "  used  and  enjoyed"  during  unity  of  ownership 

Modification  of  the  rule 

Result  of  authorities  as  to  grants  by  general  words  . 

The  word  "  grant "  not  essential 

Easements  excepted  or  reserved  in  a  conveyance     . 

Grant  at  variance  with  an  act  of  parliament        .... 

Grant  subject  to  a  condition 

Implied  grant  of  easements 

Implied  grant  of  easements  necessary  to  render  a  grant  beneficial 
Grant  presumed  from  surrounding  circumstances 
Presumption  of  lost  grant  after  twenty  years'  user   . 
User  must  have  been  as  of  right  ....... 

Ignorance  of  uSer  rebuts  a  presumption  of  a  grant   . 
Surrounding  facts  to  be  considered  in  conjunction  with  continuance 
user  ........... 

Effect  of  an  old  agreement  on  presumption       .... 

Implied  grant  of  apparent  and  continuous  easements  . 

Cases  considered  :  Pyer  v.  Carter 

Ewart  V.  Cochrane         ....... 

Worthing  ton  v.  Gimson     ...... 

Pearson  v.  Spencer , 

Polden  V.  Bastard . 

Watts  V.  Kelson , 

SufEeld  V.  Brown 

Crossley  i;.  Lightowler 

Kesult  of  the  authorities 

The  American  authorities 


of 


PAGE 

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94 

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103 

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108 

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111 

113 

113 

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117 
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118 
118 
119 
119 
120 


ACQUISITIOX   OF   EASEMENTS   BY  VIRTUE    OF   AX   ACT   OF  PARLIAMENT. 

Acquisition  under  a  statute 128 

By  express  terms,  or  the  apparent  intention  of  the  act  .  .  128 
Grant  under  a  statute  immediate  or  conditional  .  .  .  .129 
Public  highways 130 


TABLE  OF  CONTENTS.  XV 

PAGE 

Private  wars 130 

Railroads 130 

Turnpike  companies 131 

ACQUISITION   OF    EASEMEXT5    UXDER   A   DEVISE. 

Acquisition  under  a  devise 131 

ACQUISITIOX   OF    EASEMEXT5    BY   PRESCRIPTION. 

Acquisition  by  prescription 131 

Nature  of  prescription  at  common  law .132 

Immemorial  usage          .........  132 

Presumption  after  twenty  years'  usage 132 

Presumption  of  grant      ....         .....  132 

Prescription  in  America     .         .         . 133 

Must  be  adverse     . 134 

Conclusiveness  of  prescriptive  right  .......  136 

The  Prescription  Act 136 

Section  2.  —  Ways,  watercourses,  and  other  easements     .         .         .137 

Sections.  —  Light 137 

Explanations  of  sections  2  and  3 138 

Custom 133 

"Way" .  138 

"  Or  other  easement  " 138 

Uninterrupted  flow  of  air  . •    .         .  133 

Support 140 

Pollution  of  air          ..........  140 

Easement  claimed  to  obtain  a  j>rq/?f  a  jsremfre       ....  142 

♦'Watercourse"        . 142 

"  Use  of  water  " 142 

Light 142 

Actual  enjo}-ment 143 

Efifect  of  the  Prescription  Act  on  prescription  at  common  law  .         .  144 

Legalization  of  previous  user  when  an  easement  is  acquired  .         .  145 
Claims  to  prescriptive  rights  by  owners  in  fee  and  occupiers  of  land 

respectively 145 

Rules  for  computing  prescriptive  periods  under  the  act          .         .  146 

Section  4.  —  Periods  to  be  computed  from  "  some  suit  or  action  "      .  146 

Not  from  the  commission  of  an  adverse  act    .         .         .         .         .  147 

Meaning  of  5ome  suit  or  action  .         .         .         .         .         .         .         .147 

User  must  be  next  before  some  suit  or  action          ....  148 

No  such  rules  at  common  law .  149 

Section  6.  —  No  presumption  of  user  to  be  made    ....  149 

Presumption  not  prohibited  when  evidence  of  an  actual  grant  exists  151 
Section  7.  —  Disability  of  persons  interested  in  resisting  prescriptive 

user 152^ 


XVI 


TABLE   OF   CONTENTS. 


Section  8.  —  User  during  terms  of  life  or  years  in  the  servient  tene- 
ment    .........••• 

"  Other  convenient  watercourse  " 

Intervention  of  life  estate,  computation  of  period       .... 

Continuity  of  period.     Exclusion  of  period  of  disability 
Exclusion  of  terms  for  life  and  years,  under  section  8,  when  comput- 
ing periods  of  forty  years       ........ 

The  character  of  the  user  the  same  at  common  law  and  under  the 
statute  ............ 

No  prescription  at  variance  with  a  grant        .... 

No  prescription  at  variance  with  a  prescriptive  right 
Prescription  at  variance  with  a  natural  right 
Prescription  possible  only  when  a  grant  can  be  presumed 
Easement  must  have  been  capable  of  being  granted 
No  prescription  adversely  to  a  statute        .... 

No  jwescription  if  servient  owner  incapable  of  resisting  user 

The  power  to  resist  must  be  by  reasonable  means 

Incapacity  of  servient  owner  to  make  a  grant 

Incapacity  of  dominant  owner  to  take  by  grant  .         .         .         . 

The  time  at  which  incapacity  must  exist  in  order  to  defeat  prescrip- 
tion         

No  prescription  if  servient  owner  is  ignorant  of  user 
No  prescription  unless  dominant  and  servient  tenements,  and 
subject  of  an  easement,  are  permanent         .... 
Prescriptive  user  must  give  title  against  all  persons 

User  must  have  been  "  as  of  right" 

Prescription  Act :  —  user  "  as  of  right,"  —  "  claiming  right  thereto  " 

Bright  V.  Walker 

Tickle  V.  Brown  ....... 

User  must  not  be  by  permission  or  by  stealth  or  precarious 

User  must  be  peaceable . 

Interruptions  evidence  against  peaceable  enjoyment 
Privilege  must  be  enjoyed  in  the  character  of  au  easement 
User  must  be  uninterrupted  and  continuous  . 

Interruptions  of  three  kinds 

(a)  As  of  right         ...... 

(&)  As  an  easement      ...... 

(c)  In  fact      ...         .... 

Interruptions  in  fact  as  at  common  law     .... 

Non-user 

Partial  interruption  of  user 

Trifling  and  accidental  interruptions      .... 

Suspension  of  user  by  agreement 

Interruptions  in  fact  under  the  Prescription  Act     . 


the 


152 
152 
153 
153 

154 

154 
155 
156 
157 
157 
158 
159 
160 
161 
162 
163 

164 
165 

166 
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172 
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TABLE   OF   CONTENTS.  XVll 

PAGB 

Voluntary  cessation  of  user,  and  user  by  permission           .         .  .179 

Acquiescence  in  interruption  .         .......  180 

Interruption  during  tenancy  for  life   .         .         .         .         •         .  .180 

By  dedication  or  public  prescription       .         .         .         .         .         .  180 

ACQUISITION   OF    EASEMEXTS    UNDER    A    CUSTOM. 

Easements  claimed  both  by  prescription  and  under  a  custom  .  .184 
Claims  by  custom  under  the  Prescription  Act  .  .  .  .  185 
Must  be  reasonable  and  certain 185 

Sect.  2.  —  On  Acquisition  of  Particular  Easements. 

AIR. 

Two  kinds  of  easements     .         .         .         .         .         .         .         •  .186 

Uninterrupted  How  of  air        ........  186 

Prescriptive  right        .         .         .         .         .         .         .         .         .  .187 

Prescription  Act     .         .         .         .         .         .         .         .         .         .  187 

Common  law      .         .         .         .         .         .         .         .         .         .  .187 

Right  to  pollute  air         .........  1 88 

Implied  grant .188 

Prescriptive  right  ..........  188 

LIGHT. 

Acquisition  of  right  to  uninterrupted  light  and  air    .         .         .         .189 

No  grant  implied  from  suffering  windows  to  be  opened  .         .         190 

When  a  grant  is  implied  .         .         .         .         .         .         .         .         .191 

Sale  of  house  reserving  adjoining  land  .         .         .         .         .         .         191 

Sale  of  land  reserving  house      .         .  .  .         .         .         .  .191 

Sale  of  house  and  land  simultaneously 192 

The  American  law     .  .         .         . 192 

Covenant  for  quiet  enjoyment        .         .         •     ♦  •         •         •         •         202 

Right  by  prescription  at  common  law         ......     202 

Prescription  Act    ..........         210 

"  Actual  enjoyment  "  .........     210 

Ancient  custom  of  London    ........         210 

Prescriptive  rights  to  light  now  depend  solely  on  the  statute  .  .211 
Doubts  whether  prescriptive  rights  now  depend  solely  on  the  statute     212 

Enjoyment  "  as  of  right  " 213 

Capability  of  resisting  enjoyment  ...."...         215 

Enjoyment  in  character  of  an  easement 215 

Light  to  open  ground 216 

Light  to  shop- windows       .         .  .         .         .         .         .         .         .216 

Extraordinary  light  for  special  purposes 217 

Light  increased  by  reflection 219 

American  Prescription  Acts  ........         220 

b 


XVlll 


TABLE   OF    CONTENTS. 


SUPPORT. 

PAGB 

Easements  of  suj^port 220 

How  acquired         ..........  221 

Implied  grant  on  sale  of  land  reserving  subsoil 221 

Implied  reservation  on  grant  of  subsoil  reserving  the  surface  land  222 

Mining  leases     ...........  223 

No  right  by  custom  or  prescription  to  destroy  support  .         .         .  224 

Railway  Clauses  Consolidation  Act    . 225 

Support  from  underground  water   .......  226 

Supj)ort  for  buildings  .         .         .         .         .         .         .         .         .227 

Right  by  implied  grant  .         .         .         .         .         .         .         .         .  227 

Party  walls 228 

Right  by  prescription      ....         .....  229 

How  can  a  grant  be  presumed  ?          .......  230 

The  American  rule        .........  231 

No  prescriptive  right  to  support  from  buildings          ....  236 


Acquisition  of  water  rights 240 

By  grant 240 

By  prescription           ..........  240 

Streams  and  pools  must  be  defined  and  permanent         .         .         .  241 

Prescriptive  rights  in  artificial  streams 242 

Temporary  and  permanent  streams         ......  243 

Prescriptive  rights  in  temporary  artificial  streams     ....  244 

Arkwright  v.  Gell 244 

Prescriptive  rights  in  permanent  artificial  streams      .         .         .         .247 

Right  to  flow  of  underground  streams 247 

Diversion  of  streams  . .  249 

Right  to  pen  back  the  wafer  of  streams 249 

Pouring  water  over  land 250 

Drip  of  eaves 251 

Effect  of  appropriation  of  flowing  water  for  particular  purposes         .  251 

Appropriation  of  water  in  a  well 252 

Purity  of  water         ..........  253 

Right  by  appropriation  to  purity  of  artificial  streams     .         .         .  254 

Whaley  v.  Laing 254 

Wood  V.  Sutcliffe 257 

Acquisition  of  right  to  pollute  streams 258 

Pollution  gradually  increasing         .......  258 

Goldsmid  v.  Tunbridge  Wells  Improvement  Commissioners  259 

Right  to  take  water  for  use 261 

Acquisition  by  grant  or  prescription 262 


TABLE   OF   CONTENTS.  XIX 


WAYS. 

PAQE 

Ways,  how  acquired        .........  263 

Ways  by  prescription  .........  263 

Grants  by  general  words          ........  263 

Grant  of  ways  shown  in  plans      .......  264 

The  American  law           .....;...  265 

Ways  of  necessity        .........  266 

Ways  of  necessity  only  when  there  is  no  other  way           .         .         .  268 

For  a  way  of  necessity  a  grant  must  be  presumed          .         .         .  268 

The  American  law  ..........  269 

By  statute 272 


ciiArTER  in. 

ox  THE  EXTENT  AND  MODE  OF  USER  OF  EASEMENTS. 

Sect.   1. —  On  (he  Extent  and  Mode  of  User  of  Easements  generally. 

Limit  and  mode  of  user  of  easements         .... 

Measure  of  easements  granted  by  deed  .... 

Construction  of  grants  most  strongly  against  the  grantor  . 
Grant  partly  at  variance  with  an  act  of  parliament 
Prescription  partly  at  variance  with  an  act  of  parliament 
Measure  of  easements  acquired  by  prescription 
Easements  do  not  hinder  the  consistent  use  of  land    . 
Increase  of  enjoyment  by  altering  a  dominant  tenement 
Right  to  obstruct  excessive  user         ..... 

Assignment  of  easements         ...... 

Repair  of  the  subject  of  an  easement  .... 

Sect.  2.  —  On  Extent  and  Mode  of  User  of  Particular  Easements. 

Alii. 

Purity  of  air 286 


Extent  of  prescriptive  rights  to  light 286 

Extent  of  rights  to  light  acquired  by  grant 289 

Enlarging  the  size  or  increasing  the  number  of  windows         .         .  290 

Altering  and  improving  the  condition  of  windows       ....  291 

SUPPORT. 

Natural  right  to  support  unlimited 292 

Natural  right  to  support  modified  by  agreement         ....  294 


.  274 

275 

.   277 

278 

.  279 

279 

.  280 

280 

.  281 

283 

.  285 

XX 


TABLE   OF   CONTENTS. 


Limited  support  for  buildings  .... 

Obligation  and  rigbt  to  repair  a  supporting  building 


WATER. 

Limit  of  natural  rights  to  the  use  and  flow  of  water 

Use  of  water 

Ordinary  and  extraordinary  use     . 

Cutting  ice 

Riparian  right  to  irrigate  land 

Irrigation  in  America  .... 

Use  of  water  for  manufacturing  purposes 

Prescriptive  right  to  divert  part  of  a  stream 

Extent  of  prescription  to  flow 

Measure  of  prescriptive  right  to  pollute  a  stream 

Pollution  by  particular  means 

Pouring  dirty  water  over  land  in  excess 

Partition  of  riparian  land 

Assignment  of  riparian  rights    . 

Easements  by  grant 


of  right 


WAYS 

Rights  of  way,  general  or  limited 
Measure  of  right  of  way  granted  by  deed 
Measure  of  right  of  way  acquired  by  prescription 
Rights  of  way  of  necessity  coextensive  with  the  necessity 
Alteration  of  place  of  access  to  a  way         .... 
Rights  of  way  to  be  used  only  in  connection  with  the  dominant 

ment 

Ackroyd  v.  Smith         ...... 

The  occupier  of  a  dominant  tenement  and  his  licensees  alone 

a  way 

User  of  way  to  a  place  beyond  the  locus  ad  quern 

Right  of  way  to  a  highway     ....... 

Right  to  build  over  ways   ....... 

Gates  and  bars  on  private  ways      ...... 

Decreasing  the  width  of  private  ways         .... 

Partition  of  a  dominant  tenement  ...... 

Way  becoming  impassable;  right  to  deviate 
Way  periodically  interrupted  ;  right  to  deviate 
Interruption  from  extraordinary  cause  ;  right  to  deviate    . 

Destruction  of  road ;  right  to  deviate 

Want  of  repair  ;  right  to  deviate        ..... 

Grounds  of  the  rule  .         .         r 

Not  taking  private  property 


to  use 


tene- 


PAGE 

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294 


296 
296 
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311 


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321 

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342 
343 
344 


TABLE   OF   CONTENTS.  xxi 


PAGE 


Right  limited  by  the  necessity 344 

Obstruction  by  grantor ;  right  to  deviate  .         .         .         .         .         .  345 

Right  to  repair  a  way      .         .         .         .         .         .         .         .         .  345 

Direction  of  ways        ..........  346 

Direction  of  ways  of  necessity 348 

Variation  of  direction  of  ways  of  necessity 350 

Grant  for  a  continuing  purpose.  —  Variation  of  mode  of  user         .  351 

Power  to  make  ways  to  be  exercised  reasonably         ....  352 


CHAPTER  IV. 


ON  DISTURBANCE  OF  EASEMENTS  AND  ON  LEGAL  REIMEDIES  FOR 

THE  SAME. 

Sect.   1.  —  On  Disturbance  of  Easements  generally,  and  on  Legal  Reme- 
dies for  the  Same. 

Right  of  freedom  from  disturbance 354 

Actual  damage  requisite  for  cause  of  action  in  certain  cases  .         .  355 

Absence  of  damage  within  time  limited  for  commencing  actions         .  355 

*  Damage  must  be  substantial 356 

Slight  damage  by  many  persons 356 

Disturbance  of  easements  an  injury  to  the  right,  which  gives  a  cause 

of  action         ...........  356 

Right  to  sue  for  disturbance  of  natural  rights  in  the  absence  of  act- 
ual damage      .         .         .         .         .         .         .         ,         ,         ,         .357 

Right  of  action  when  occupier  of  dominant  tenement  alone  disturbed  358 

Right  of  action  by  reversioner 359 

Right  of  action  for  continuing  a  disturbance 360 

Breach  of  contract  for  an  easement 360 

Justification  for  obstructing  an  easement  when  obstructing  an  en- 
croachment    ...........  362 

When  the  court  will  restrain  disturbance  by  injunction  .         .         .  363 

Damages  —  when  awarded  formerly  by  the  Court  of  Chancery  .         .  365 

Injunctions  in  America 366 

Sect.   2.  —  On  Disturbance  of  Particular  Easements,  and  on  Legal 
Remedies  for  the  Same. 

AIR. 

Right  of  action  for  obstruction  of  air 369 

Free  passage  of  air  and  light  distinguished 369 

Injunctions  to  restrain  obstruction  of  air  —  when  granted           .         .  370 

Right  of  action  for  pollution  of  air 370 

Pollution  must  be  unjustifiable .  371 

Polluting  air  previously  impure 372 


XXll 


TABLE   OF   CONTENTS. 


Coming  to  a  place  where  the  air  is  polluted       .... 
Unavoidable  pollution  by  cari-ying  on  trade   .... 

Hole  V.  Barlow 

Bamford  v.  Turnley  ...... 

Judgment  of  Pollock,  C.  B.,  in  Exchequer  Chamber 
Judgment  of  Braniwell,  B.         .         .         .         . 

Judgment  of  majority  of  the  court 
St.  Helen's  Smelting  Company  v.  Tipping 

Result  of  authorities . 

Public  nuisances 

Right  of  reversioner  to  sue  for  pollution  of  air  . 
Acquiescence  in  pollution  of  air      ...... 


PAGE 

372 
373 
374 
375 
376 
376 
376 
379 
379 
381 
381 
382 


LIGHT. 

Right  of  action  for  obstruction  of  light 

Restraint  of  obstruction  by  injunctions  . 

Right  by  implied  grant  on  sale  —  obstruction 

Justification  for  obstructing  light    . 

Sufficient  light  for  present  purposes  . 

Substitution  of  new  stream  of  light  in  a  different  direction 

Position  of  obstructing  building 

Enlargement  of  ancient  lights  and  opening  new  windows 

Renshaw  v.  Bean 

Hutchinson  v.  Copestake 

Tapling  v.  Jones 
Action  by  reversioner     ....... 

Application  for  injunction  by  a  person  with  limited  interest 
Right  of  action  against  a  tenant  for  obstructing  light 
Substantial  injury  requisite  to  support  an  action 
Covenant  for  quiet  enjoyment.  —  Proof  of  substantial  injury  . 
Light  })re vented  falling  at  angle  of  45  degrees;  substantial  injury 

Possibility  of  future  injury 

Right  to  abate  obstruction  of  light 

In  America 


382 
383 
384 
385 
386 
386 
387 
387 
388 
389 
390 
394 
396 
397 
397 
399 
400 
401 
406 
407 


SUPPORT. 

Right  to  sue  for  disturbance  of  natural  rights  to  support  .         .  .409 

Effect  of  erecting  buildings            .......  409 

In  America     .         .         .         .          .          .          .          .          .          .  .     410 

Right  to  sue  for  disturbance  of  support  to  buildings      .         .         .  413 

Effect  of  increasing  the  weight  of  buildings 414 

Right  of  action  against  a  wrong-doer  for  removing  support  .          .  415 

When  a  cause  of  action  for  removal  of  support  accrues     .         .  .416 

Bonomi  v.  Backhouse .  417 


TABLE   OF   CONTENTS. 


XXlll 


PAGE 

Time  to  sue  if.it  is  limited  from  the  commission  of  an  act          .         .  420 
Lands  and  Railways  Clauses  Acts.  —  Right  to  sue  for  disturbance 

of  support    ...........  421 

WATER. 

Disturbance  of  water  rights       . 422 

Damage  necessary  to  support  an  action  for  obstructing  and  diverting 

a  stream 423 

The  American  law 425 

Water  diverted  from  a  stream  returned  thereto  .         .        .         .426 

Obligation  to  keep  a  stream  free  from  obstruction           .         .         .  427 
Obstruction  before  the  possession  of  a  person  who  sues      .         .         .427 

Right  of  action  for  continuing  the  obstruction  of  a  stream     .         .  427 

The  American  law     .         . .428 

Right  to  abate  obstruction  of  streams     .         .         .         .         ,         .  429 

Disturbance  of  the  steady  flow  of  a  stream 429 

Disturbance  of  the  right  to  take  water  for  use        ....  432 

Right  of  action  for  pollution  of  water 434 

Previous  pollution  no  justification  for  fouling  water        .         .         .  435 

Pollution  of  a  stream  by  carrying  on  trade  not  justifiable  .         .         .  436 

When  the  court  will  restrain  pollution  of  water      ....  436 
Restraint  of  drainage  of  towns  if  streams  are  polluted       .         .         .437 

The  American  law 438 

Riparian  owners  must  prove  injury  in  that  character          .         .         .  438 

Pollution  of  underground  water     .......  439 

Right  of  action  for  pollution  in  the  absence  of  right  to  use  water       .  439 

WAYS. 

Plaintiff's  own  wrong 443 

No  right  of  action  for  neglect  to  repair  a  way  .....  443 

Action  by  reversioner  for  obstruction  of  a  way      ....  444 

Temporary  obstructions.  —  Right  of  action     .....  444 

Obstruction  of  a  private  way  over  a  public  road  ....  445 

Obstruction  of  a  private  way  by  an  obstacle  in  a  public  road    .         .  446 


CHAPTER  V. 

ON  EXTINCTION,  SUSPENSION,  AND  REVIVAL  OF  EASEMENTS. 

Sect.  l.  —  On  Extinction,  Suspension,  and  Revival  of  Easements  generally. 

Extinction  and  suspension  of  easements  and  natural  rights        .         .447 
Extinction  of  easements        ........        449 

By  act  of  parliament        .........    450 


xxiv  .  TABLE   OF   CONTENTS. 

PAGE 

Extinction  by  operation  of  law 451 

Completion  of  the  purpose  of  a  grant 451 

Extinction  of  easements  of  necessity  on  termination  of  the  necessity  452 
Extinction  on  alteration  of  a  dominant  tenement       .         .         .         .452 

Alteration  must  be  material  ........  453 

Trifling  alteration    ..........  455 

Extinction  on  union  of  seisin         .         .         .         .         .         .         .  457 

Kecessity  for  union  of  seisin     ........  458 

Seisin  must  be  for  estates  in  fee  simple  .....  459 

Unity  of  possession  and  enjoyment  not  necessary      ....  460 

Extinction  by  the  act  of  the  owner        .         .         .  .         .         .  460 

Release  and  abandonment  ....         ....  460 

Non- user  alone  insufficient  evidence  of  release        ....  461 

Release  when  presumed  on  cessation  of  user      .....  462 

Cases  in  which  non-user  is  the  only  evidence  of  abandonment        .  464 

Abandonment  presumed  after  non-user  for  less  than  twenty  years     .  465 

Release  or  abandonment,  when  possible  .....  466 

Temporary  agreement  to  suspend  user        .         .         .         .         .         .467 

Substitution  of  new  method  of  enjoyment 467 

Right  of  dominant  owners  to  abandon  easements        ....  468 

Licenses 469 

Revocable  and  irrevocable  licenses   .......  469 

Execution  of  a  work  of  a  pei-manent  and  expensive  character        .  471 

In  America .472 

Revocation  by  adverse  act  of  the  grantor       .  .         .  .         .  474 

Revival  of  easements  and  natural  rights  .         .         .         .         .         .475 

Sect.  2.  —  On  Extinction,  Suspension,  and  Revival  of  Particular  Easements. 

Loss  by  abandonment     .         .         .         .         .         .         .         .         .  477 

Release  presumed  after  less  than  twenty  years'  non-user  .         .        .  478 

Effect  of  altering  size  or  position  of  windows  ....  480 

EflFect  on  rights  acquired  by  grant 480 

Effect  on  rights  acquired  by  prescription       .....  481 

Non-user 482 

Restoration  of  ancient  lights  in  new  buildings        ....  483 

SUPPORT. 

Effect  on  rights  to  support  of  imposing  additional  weights         .         .  484 

EfJ'ect  on  a  natural  right .         .  484  < 

Effect  on  an  easement  of  support 485 


Extinction  on  creation  of  public  ways 485 

Ways  of  necessity  cease  with  the  necessity 486 


TABLE   OF   CONTEXTS.  XXV 

The  American  law 437 

Extinction  on  union  of  seisin      . 488 

Revival  of  right  on  severance          .          .         ,     '   .         .         .         .  488 

Ways  becoming  inaccessible 491 


APPENDIX. 

The  Prescription  Act;  2  &  3  Wm,  4,  c.  71       .        •.         .         .         ,     493 

Index  ..........        497 


TABLE   OF   CASES   CITED. 


A. 


Abbott,  Spauldinr;  v.  99,  100 

r.  Stewartstown         452,  487 
V.  Weekly  19 

Abson  V.  Fenton  110,  352 

Absor  V.  French  343 

Ackroyd  v.  Siuith  8,  10,  15,  22,  73, 

321 
London  &  Norlh  West- 
ern R,  K.  V.  22G,  422 
Aoton  V.  lilundell     62,  G4,  248,  253 
Adams  v.  iMiierson              6,  73,  130 
Kilburn  v.  132,  134 
Smith  V.  253 
t;.  Van  Alstvne  79 
V.  Walker    '                         242 
Adamson,  MeNab  v.              250,  302 
Oakley  v.  96 
Aire  &  Calder  Nav.  Co.,  Reg.  v.  422 
Albro,  lliittemeier  v.                        9!) 
Alcoek,  Booth  v.                              191 
Alden,  Weston  v.                            301 
Alder  v.  Savill                                  305 
Alderson,  Houpes  v.                       331 
Aldred's  case  25,  79,  157,369,  371, 
434,  443 
Alexander  v.  Kerr                         425 
Alwer,  Howe  v.                 96,  265,  266 
Allan  V.  Gomme                      317,  453 
Aliard,  Jacobs  v.                             239 
Allen  V.  Fiske                                  4  74 
V.  Kincaid                             271 
Mayor  of  Birmingham  v.     36 
V.  Ormond                      76,  445 
Alley  t'.  Carleton                    270,  452 
Allis  V.  JMoore                                  165 
Alstead,  State   v.                            490 
Alves  V.  Henderson                       461 
American  Co.  v.  Bradford    249,  269 


Ames,  BardwcU  v.  58 

Aniidon  v.  Harris  10 

Amoskeag    Man.     Co.,     East- 
man   V.  428 
V.  Goodale  429 
Anderson  v.  Buchanan  271 
Daniel  v.  13 
Andover,  Proctor  v.                       272 
Andrews,  Canny  v.                        451 
Salisbury  v.                 330,  335 
Androscoggin  Bridge  v.  Bragg   472 
Angier,  Bannon  v.  277,  351,  464,  489 
Angus  u.  Dalton  135,  140,  161,  221, 
229,  233,  235 
Anonymous                                     314 
Anthony  v.  Lapham                      301 
Appleton,  United  States  v.  121,  193, 

208 
Appleyard,  Bailey  v.  7,  142 

Appold,  ^layor  of  Baltimore  v.    296 
Arcedeckne  v.  Kelk  397 

Ardley  r.  St.  Pancras  Guardi- 
ans 77,  96,  314 
Arkwright  v.  GellGl,  139,  161,  167, 
244,  251 
Armory  v.  Delamirie  443 
Armstrong,  Bentz  v.  241 
Arndt,  Shields  v.                   243,  367 
Arnett,  Lacv  v.                       307,  474 
Arnold  v.  Bl'aker           181,  314,  341 
V.  Cornman                          450 
V.  Holbrook        314,  341,  343 
V.  Jefferson                  397,  406 
Lyman  v.  130 
V.  Stevens                   464,  489 
Ash,  Biddle  v.                                366 
Ashley  v.  Ashley                           239 
Ashley  v.                              239 
I'.  Pease                               312 
V.  Wolcott                            243 


XXVlll 


TABLE   OF   CASES   CITED. 


Aspden  r.  Seiklon  45,  222,  228,  294 
Atlierton,  State  v.  182 

Tracy  y.    136,  165,  173,  269, 
465 
Atkins  V.  Bordman      329,  333,  346 
V.  Chilson  207 

Atlanta  Mills  v.  Mason  459 

Atlantic  De  Laine  Co.,  Rich- 
mond Man.  Co.  V.  368 
Atty.  Gen.  v.  Council    of  Bir- 
mingham                         437 
V.  Corp.  of  Plymouth         278 
V.  Earl  of  Lonsdale      61,  432 
t;.  Gee                          435,  437 
V.  Leeds  Corp.                     437 
V.  Mayor,   &c.  of  Plym- 
outh                                  109 
V.  N.  J.  R.  R.                     368 
V.  Nichol             383,  387,  397 
V.  Sheffield  Gas  Consum- 
ers' Co.                             435 
Atwater  v.  Bodfish                316,  488 
Auburn    &    Syracuse    R.     R., 

Miller  v.        "  474 

Auction  Mart  Co.,  Dent  v.  386,  397 
Augsbury,  Hall  v.  302 

Aurora  v.  Gillett  •>   2 

Austin  V.  Cox  94,  277 

Austria  v.  Day  365 

Aylor,  Nichols  v.  173 

Aynesley  v.  Glover      144,  213,  366, 
388,  395,  404 
Ayrault,  Curtiss  v.  '244 


B. 


Bachelder,  New  Ipswich  Wool- 
len Factory  v.  48,  123 
V.  Wakefield  134 
Back  V.  Stacey  397 
Backhouse  v.  Bonomi  35 
Bonomi  v.  355,  416,417,  420 
Badger  v.  Boardman  82,  367 
Doane  v.  285,  346 
Bagg,  Powell  V.  173 
Bailey  v.  Appleyard  7,  142 
V.  Jamieson  491 
Kcppell  V.  15,  21,  323 
V.  Stephens  112 
V.  Stevens  7,  15 
Baiss,  Hackett  v  401 
Bakeman  v.  Talbot  331,  346 


Baker,  Blanchard  v.  301 

V.  Breremau  183 

V.  Crosby  452,  487 

V.  Frick  331 

V.  Johnston  182 

V.  McGuire  307 

V.  St.  Paul  182 

V.  Wheeler  474 

Baldwin  v.  Calkins  250,  303 

V.  City  of  Buflfalo  461 

Den  y.  4  72 

Ball  V.  Nye  47 

Ballacorkish  Mining  Co.  v. 

Dumbell  64,  253 

Ballacorkish  Silver,  Lead,  and 
Copper  Mining  Co.  v.  Harri- 
son 54 
Ballard  v.  Ballard  Vale  Co.         488 
V.  Butler                            449 
V.Dyson              77,279,317 
Saro-ent  V.         132,  136,  174 
Ballard  Vafe  Co.,  Ballard  v.        488 
Bamford  v.  Turnley                31,  375 
Bancroft,  Rogers  v.                       311 
Bankart  v.  Houghton              91,  382 
V.  Tennant                 91,  471 
Bankhead  v.  Brown                       272 
Bannister,  Fielder  v.                      350 
Bannon  v.  Angier  v.    277,  351,  464, 

489 

Barber,  Cooper  v.  161,  250 

V.  Whitely  79 

Barclay  v.  Howell  130 

Bardwell  v.  Ames  58 

Barker  v.  Clark  99,  100 

V.  Richardson  163 

Barlow  v.  Chicago,  &c.  R.  R.     464 

Hole  V.  30,  374,  375 

V.  Rhodes      8,  98,  100,  103, 

476 

Barnes  v.  Lloyd      99,  464,  465,  489 

V.  Loach  131,  290,  385 

Pollard  V.  174,  177 

V.  Sabron  243 

Smith  V.  490 

Barrett,  Cummings  v.  298,  866 

V.  Salis.  Man.  Co.  66 

Barrow  v.  Richard  367 

Barrows,  Wheeldon  v.  199 

Bartlett,  Griffin  v.  307 

Barwell,  Ennor  v.  54 

Bass  V.  Edwards  345,  350 

White  V.  192,  198,  199 

Bassett  t;.  Salisbury  Man.  Co.      248 


TABLE   OF   CASES    CITED. 


XXIX 


Bastable  v.  Syracuse  242 

Bastard,  Polden  v.  118,  131 

Bates,  Proud  t'.  222 

V.  Smith  241 

Battishill  y.  Reed  173,176,359 

Battle,  Bio;low  v.  304,  311 

Baugh,  Wheatley  v.  65,  207,  253 
Baxendale  v.  McMurray  309,  456 
Baxter  v.  Bower  370,  384,  387 

V.  Taylor  160,  360 

Beach,  First  Parish  in  Glou- 
cester V.  134 
Beadel  y.  Perry  397,401 
Bealey  v.  Shaw  24,  56,  57,  249,  275, 
279,  302 
Beaman,  Kaler  v.  311 
Bean  v.  Coleman  .  331,  366 
Renshaw  v.  310,  388 
Beard,  Fisher  v.  182 
V.  Murphy  242 
Beardmore  v.  Tredwell  371,  375 
Beasley  v.  Clarke  170 
Beatty  v.  Gregory  474 
Beaudley  v.  Brook  98 
Becker  v.  St.  Charles  182 
Bedingfield  v.  Onslow  359 
Beers,  Shipman  v.  197 
Beeston  i;.  Weate  243,  249 
Belknap  v.  Trimble  249 
Bell  V.  Midland  R.  R.         359,  360, 

444 

Rawson  i\  471 

V.  Reed  35 

u.  Twentyman  427 

Bellows  V.  Sackett  242,  251 

Bemis  v.  Upham  368 

Benedict,  Strong  v.  312 

Benjamin  v.  Storr  381 

Bennett,  Gt.  Western  R.  R.  v.     226 

Parker  v.  126 

Taylor  v.  432 

Bennison  v.  Cartwright  180 

Benson,  Dubuque  v.  182 

Benton,  Harwood  v.  65 

Bentz  V.  Armstrong  241 

Bermondsey  i\  Brown  182,  183 

Berridge  v.  Ward  3^0 

Berry,  Brown  v.  269 

Bertram,  Thomas  v.  269 

Best,  Brown  v.  56,  302 

Bethune,  Gayetty  v.    101,  136,  173, 

270 
Beutel,  Scott  v.  11 

Bibby  v.  Carter  415 


Bickett  V.  Morris     57,  61,  358,  424, 

430 
Biddle  r.  Ash  366 

Big  Mountain  Improvement  Co.'s 

Appeal  2 

Bigelow,  Richardson  v.        312,  359, 
444,  445 
Biglow  V.  Battle  304,  311 

Binckes  v.  Pash  390 

Bingham,  Metcalf  v.  273 

Bioren,  Watson  v.  339 

Bird,  Webb  v.     135,  138,  141,  162, 
187,  369 
Birkenhead  R.  R.,  Laird  v.         4  71 
Birmingham   Canal  Co.,   Staf- 
fordshire   &    Worcestershire 
Canal  Co.  v.  159 

Bishop  V.  North  128,  351 

Parks  V.  316 

Seeley  r.  122,  269 

V.  Springett  160 

Bissell  ?;.  Grant  11,  277 

V.  N.  Y.  Cen.  R.  R.  182 

Black,  Murchie  v.  44,  228,  413, 

414 
Blaokett  v.  Bradley  161,  185,  224 
Blaine  v.  Chambers  121 

Blaisdell  v.  Ports.,  Gt.  Falls  & 

Conway  R.  R.  4  74 

Blake  v.  Everett  134 

t'.  Rich  130 

Warren  v.  126,  457 

Blakemore,    Glamorganshire 

Canal  Navigation  Co.  v.  129 
Blaker,  Arnold  v.  181,  314,  341 

Blanchard  v.  Baker  301 

V.  Bridges  190,  385,  481,  482 
Bland  v.  Lipscombe  7 

Blatchford   v.  Mayor  of  Plym- 
outh 25,  275 
Blewett  V.  Tregonning     7,  113,  184 
Blincoe,  Gates  v.  429 
Bliss  V.  Greeley  65 
V.  Hall          29,  141,  189,  373 
V.  Kennedy                            366 
Blodgett  V.  Royalton                      183 
Bloch  V.  Pfaff                                  251 
Blundell,  Acton  v.     62,  64,  248,  253 
Boardman,  Badger  v.              82,  36  7 
Boddington,  Gillon  v.           356,  420 
Bodfish,  Atwater  v.               316,  488 
Bognor  Commissioners,  Rex  v.      59 
Boiling  Spring  Co.,  Holsman  v.  239, 
367,  436 


XXX 


TABLE   OF  CASES   CITED. 


Boisblanc,  Durel  i;.  194,208 

Bolivar  Man.  Co.  v.  Neponset 

Man.  Co.     115,  136,  249,  304 
Bond  V.  Fay  314 

Grayt'.  114,  166 

Bonomi,  Backhouse  v.  35 

V.  Backhouse  355,  416,  417, 

420 

Booth  V.  Alcock  191 

Lanier  v.  122 

Sutcliffe  V.  48 

Borden  v.  Vincent  136,  250 

Bordman,  Atkins  v.      329,  333,  346 

Phillips  V.  229 

Borman,  Robbins  v.  6,  130 

Borst  I'.  Empie  15,  99,  311 

Boston,  Dwight  Printing  Co.  v.    67, 

254 

Harback  v.  79,  131 

Hemphill  v.  181 

Paine  v.  207 

Valentine  v.  181 

Boston,  &c.  11.  R.  Clark  v.  273 

Boston  &  Maine    R.    R.,  Dol- 

liff  V.  126 

Parker  v.  253 

Boston    &  N.   Y.   Cen.    R.  R., 

Brain ard  v.  265 

Boston  &  Worcester  R.  R.,  Bos- 
ton Water  Power    Co.  v.  131 
Boston  Water    Power    Co.    v. 

Boston  &  Worcester  R.  R.        131 
Boston  Water  Power  Co.,  Tay- 
lor V.  131,  181 
Bowen  v.  Connor  99,  269 

V.  Team  2 

Bower,  Baxter  v.  370,  384,  387 

V.  Hill        338,  357,  454,  461, 
462,  4  76 

Riviere  v.  83,  408 

Bowers  f.  Suffolk  Man.  Co.  182 

Bowker,  Putnam  v.  134 

Bowlsby  V.  Speer  241 

Bowman  r.  New  Orleans  242 

Bowser,  Whetstone  v.  248 

Boyd,  Cannon  v.  124 

Boylston     Market     Asso., 

Schwoerer  v.  367 

Brace  v.  Yale  249 

Bracewell,  Nuttall  v.         48,  53,  310 
Brackney,  Thomas  v.  309 

Bradford,  American  Co.  v.  249,  269 
Bradley,  Blackett  v.     161,  185,  224 

Buddington  v.  249 


Bradley,  Norway  Plains  Co.  w.    425, 

429,  432 

White  y.  195,  271 

Bradley  Fish  Co.  v.  Dudley  134, 459 

Bragg,  Androscoggin  v.  472 

Crooker  y.  301,425 

Brainard   v.   Boston  &   N.   Y. 

Central  R.  R.  265 

V.  Clapp  130 

Brakeley  v.  Sharp  127,  269 

Branch  .".  Doane  425,  428 

Brandling,  Newmarsh  v.  470 

Brayton  v.  Fall  River  438 

Bi-ereman,  Baker  v.  183 

Brewer  r.  Marshall  82,367 

Moffett  V.  429 

Brewster  Min.  Co.,  Marvin  v.    34, 

222,  294 

Brice  v.  Randall  185 

Bridges,  Blanchard  v.  190,  385,  481, 

482 

V.  Purcell  473 

Bridgman,  Sturges  v.  135,  141 

Brigham,  v.  Smith        122,  269,  270 

Bright   V.   Walker        11,  114,  151, 

154,  168,  169,  170,  173,  175,  176, 

458 

Bristol,  Miller  r.  346 

Bristol  Dock  Co.,  Rex  v.  433 

Broadbentv.  Ramsbotham     55,  241 

V.  Wilkes  185 

Brobst,  Wetherell  v.  90 

Brocklehurst,  Wardle  v.  104 

Brockwell,  Winter  v.  4  71 

Brogden,  Humphries  v.     34,  35,  42, 

230,  293,  409 

Bronson  v.  Coffin  79,  323 

Brook,  Beaudley  v.  98 

Brooks  V.  Curtis  228 

Swazy  V.  100 

Brossart  v.  Corlett  314,  339 

Brouwer  v.  Jones  367 

Brown,  Bankhead  v.  272 

Berniondsey  V.  182,  183 

V.  Berry  269 

V.  Best  56,  302 

V.  Cayuga  &  Susq.  R.  R.  429 

V.  Chadbourne  429 

Frazier  v.  65,  241,  248 

V.  lUius  254,  439 

Mahan  v.     32,  33,  190,  203, 

205 

Miller  v.  229,  471,  472 

V.  Robins     38,  409,  410,  485 


TABLE   OF   CASES   CITED. 


XXXI 


Brown,  SufTield  v.  118,267 

Tickle  V.  170 

Vestry  of  Bermondsey  v. 

263 
V.  Windsor  236 

Browne  v.  Trustees  of   M.  E. 

Church  460 

Browning,  Foster  v.  4,  472 

Brownlow  v.  Tomlinson  76 

Browse,  FishtT  v.  182 

Bruckhardt,  Halderaan  v.      65,  248 
Brumfitt  v.  Roberts  8 

Thorpe  v.       15,  73,  356,  445 
Brummell  v.  Wharin  408 

Brumraell  v.  Wharin  83 

Brunton  v.  Hall  314 

Bryant  i^.  Lefever  188 

Buccleuch,    Duke    of,    AVake- 

field  V.  36,  185 

Buchanan,  Anderson  u.  271 

Buckby  v.  Coles  452,  457,  4G0 

Bucknall,  Heath  v.      363,  394,  457 
Bud<lington  c.  Bradley  24ii 

Buell  V.  Read  302 

Builalo,  &c.  R.  R.,  Conhocton  R. 

R.  V.  241 

Buffalo  Hydraulic  Asso.,  Evan- 
gelical Home  V.  351 
Buffum  V.  Harris  66,  241 
Bullard  v.  Harrison  268,  342,  343 
Bullen  I'.  Runnels  311 
Bulwiiikle,  Napier  v.  207 
Bunn,  Portinore  c.  93 
Bunnell,  AVarren  v.  273 
Burbank,  Goodrich  v.  10 
Burchard,  Voorhees  v.  99,  121 
Burchell,  Dodd  v.  116,  268 
Burden,  Stein  v.             dij,  297,  302, 

366 

Burger,  Wynkoop  v.  276,  346 

Burke,  Couch  v.  472 

Burn,  Straight  v.  387,  394 

Burnet,  Colvin  v.  250 

Henning  v.         275,  321,  454 

Burnhaui,  Choate  v.  314 

V.  Keinpton        302,  307,  366 

V.  McQuestein  134 

Burr  V.  Mills  99,  124 

Sherwood  v.  250 

Burroughs,  Wheeldon  v.  127 

Burrows,  Underwood  c.         78,  110 

Wheeldon  v.  121 

Bury  V.  Pope  205 

Buszard  v.  Capel  5 


Butler,  Ballard  v.  449 

V.  Peck  242 

Butman  v.  Hussey  425 

Butt  V.  Imperial  Gas  Co,  81,  82 

Butterworth  v.  Crawford  127 

Byrnes  v.  Cohoes  242 


Calderwood,  San  Francisco  v.     182 

Caldwell  v.  Fulton  5,  222 

Mosier  v.  65 

Caledonia  R.  R.  v.  Sprot  94 

Calkins,  Baldwin  v.  250,  303 

Callaway  v.  Nolley  461 

Campbell  v.  Mesier  295 

V.  Race  343 

V.  Smith  250 

V.  Wilson  113,  160,  169 

Canaan,  Green  v.  182 

Canada  So.  R.  R.,  Nichol  v.        241 

Canham  v.  Fisk  283 

Cannon  v.  Boyd  124 

Canny  v.  Andrews  451 

Capel,  Buszard  v.  5 

Capers  v.  AlcKee  346 

V.  Wilson  351 

Carbines,  Hawkins  v.  332,  345,  449 

Carbrey  v.  Willis    78,  124,  166,  251, 

270 

Carleton,  Alley  v.  270,  452 

V.  Redington  429,  474 

Carlisle  v.  Cooper        307,  366,  436, 

464 
Carlyon  v.  Lovering      20,  142,  158, 

185 

Carney,  Underwood  v.  99,  339 

Carpenter,  Clatlin  v.  470 

V.  Gwynu  182 

Lowe  V.  112,  148 

Viall  V.  270,  452,  487 

Carr  v.  Foster  149,  178,  179 

Cai-rick  v.  Johnston  343 

Carrig  v.  Dee  207 

Carter,  Bibby  v.  415 

V.  Harlan  473 

Pyer  i-.  115,  195,  199 

Seymour  v.  473 

Tinicum  Fishing  Co.  v.       11 

Cartwright,  Bennison  v.  180 

Cary  v.  Daniels  239 

Case,  Prince  v.  473 

Casey,  Heald  v.  65 


XXXll 


TABLE   OF   CASES   CITED. 


Casey  r.  Ledbetter  374,  375 

Cashford,  Dawney  v.  145 

Cave  V.  Crafts  123 

Cavey  v.  Lidbetter  30,  374,  375 

Cawkwell  v.  Russell  282,  310,  362 
Cawthorne,  Whitaker  v.  473 

Cayufra  &  Susq.  R.  R.,  Brown  v.  429 
Cen.  R.  R.,  Hetfield  v.  472 

Central  Wharf  v.  India  Wbarf  450 
Chadbourne,  Brown  v.  429 

Chadwick,  Coleman  v.  34,  222 

V.  Trower  44 

Chalfant,  Wilson  v.  472 

Chamberlain,  Nicholas  v.  110 

Chambers,  Blaine  v.  121 

Chance,  Hanmer  v.  151 

Chandler  v.  Howland  301 

V.  Jamaica  Pond  Aque- 
duct 277,351,465 

Jamaica  Pond  Aqueduct 
Co.  V.  4,  461,  464 

Parley  v.  73,  130 

V.  Thompson  33,  84,  203,  481 
Chapin  v.  Sullivan  R.  R.  130 

White  V.  135,  429 

Chappell,  Child  V.  182,183 

Charless  v.  Rankin  45,  411 

Charlestown,  Tufts  v.  95,  266 

Chase,  Grant  v.  101,  193,  487 

V.  Silverstone  65,  253 

Chasemore  v.  Richards     54,  62,  64, 
65,  68,  135,  242,  248,  253 
Chatfield  v.  Wilson        65,  248,  253 
Chauntler  r.  Robinson  17 

Checkley,  Midland  R.  R.  v.  422 
Cheever  v.  Pearson  473 

Chelsea,  Greene  v.  182 

Cherry  v.  Stein  207 

Chestnut  Hill,  &c.  Co.  v.  Piper  134 
Chicago,  &c.  R.  R.,  Barlow  v.  464 
Chicago,  &c.  R.  R.  Co.,  Cook 

Co.  V.  5 

Chicago,  No.  Trans.  Co.  v.  34 

V.  Northwestern  R.  R.       173 

Rees  V.  182 

Chichester  v.  Lethridge  75,  317 

Child  V.  Chappell  182,  183 

Chilson,  Atkins  v.  207 

Choate  V.  Burnham  314 

Chorley,  Regina  v.    25,  75,  76,  177, 
461,  465,  485 
Chorlten,  Hinde  v.  79 

Christian,  Senhouse  v.  326,  351 

Church,  Womersley  v.  439 


Cincinnati  v.  White  181 

City  of  Buffalo,  Baldwin  v.         461 
City  of  London  Brewery  Co.  v. 

Tennant    288,  366,  370,  387,  401 
Citv  of  Quincy  v.  Jones  411 

Clack,  White  v.  271 

Claflin  V.  Carpenter  470 

Clapp,  Brainard  v,  130 

Clark,  Barker  z;.  99,100 

V.  Boston,  &c.  R.  R.  273 

Clarke  v.  387 


V.  Cogge' 

26, 

267 

Denniston  v. 

10 

Donnell  v. 

134 

Martin  v. 

367 

V.  Parker 

94 

V.  Way 

89 

Clarke,  Beasley  v. 

170 

V.  Clark 

387 

V.  French 

443 

Roberts  v. 

174 

Clawson  V.  Primrose 

208, 

407 

Clay  V.  Thackrah 

172, 

174 

Clayton  c.  Corby 

153, 

180 

Clear  Lake  Co.,  Grigsby  v.  307 

Clement  i'.  Durgin  472 

Cleveland  i\  Ware  166 

Clifford  V.  Hoare  5,  332 

Clinton  v.  Myers  65 

Cloud,  Pierce  i'.  135 

Clowes  I'.  Staffordshire  Potter- 
ies Waterwoi'ks  Co.  364,  436 
Clue,  Darling  v.  149,  462 
Cobb  V.  Davenport  7 
Cocheco  R.  R.,  Kimball  v.  269 
Cocheco  Man.  Co.,  Whittier  v.  303 
Cochrane,  Ewart  v.  116,  271 
Cocker  v.  Cowper  3,  89,  90,  252 
Codling  V.  Johnson  337 
Codman  v.  Evans  6,  130,  186 
Coe  V.  Winnipiseogee  Lake  Co.  366 
CotHn,  Bronson  v.  79,  323 
Cogge,  Clark  v.  26,  267 
Cohen,  Wilson  v.  242 
Cohoes,  Byrnes  v.  366 
CoLburn  v.  Richards  301,  429 
Colchester  v.  Roberts  324,  328 
Cole  V.  Drew  130 
Cole  Silver  Mining  Co.  v.  Vir- 
ginia &  Gold  Hill  Water  Co.  248 
Colebeck  v.  Girdlers'  Co.   285,  295, 

346 

Coleman,  Bean  v.  331,  366 

V.  Chadwick  34,  222 


TABLE   OF   CASES   CITED. 


XXXIU 


Coleman,  Glover  v.       144,  148,  180 
Coles,  Buckby  v.  452,  457,  460 

V.  Sims  81 

Collier  V.  Pierce  122,  200 

Colimas,  Pico  v.  285 

Collins  17.  Prentice         122,  269,  271 
Colvin  V.  Burnet  250 

Commissioners  v.  Taylor  461 

Commissioners     of      Lincoln, 

Hall  c.  273 

Commissioners  of  New  Forest, 

Mill  V.  159,  163 

Commonwealth  v.  Low  181 

Sclieuley  v.  359 

V.  Upton  29,  373,  381 

V.  Vincent  299 

Compton  V.  Richards  192 

Comstock  V.  Johnson  121 

V.  Van  Deusen  314 

Conhocton  11.  R.  v.  Buflfalo,  &c. 

R.  R.  241 

Connecticut  &   Passumpsic  R. 

R.  V.  Ilolton  130 

Connehan  v.  Ford  181 

Conner,  Hart  v.  351 

Connor,  Bowen  v.  99,  269 

Ogburn  v.  242 

Constable  v.  Nicholson  7,  164 

Converse,  Plimpton  ?'.  124,  457 

Plympton  v.  134 

Conway,  Peck  i'.  82,  99,  367 

Cook  Co.  V.    Chicago,    &c.   R. 

R.  Co.  5 

Cook  I'.  Hull  301 

V.  Mayor  of  Bath      462,  463 

V.  Stearns  473 

Cooke  V.  Forbes  372,  380 

Gerrard  v.  285,  346 

Coolidge  V.  Hagar  100,  123 

V.  Learned  136 

Cooper  V.  Barber  161,  250 

Carlisle  v.  307,  366,  436,  464 

V.  Hubbuck  148,  290 

Copeland,  Morse  v.  4,  90,  472 

Copestake,  Hutchinson  v.  389 

Corbett,  Curriers'  Co.  v.     192,  198, 

366,  394,  484 

Corby,  Clayton  v.  153,  180 

Corlett,  Brossart  v.  314,  339 

Corliss  Steam  Engine  Co.,  Prov. 

Tool  Co.  V.  127 

Corning  v.  Gould  450,  465 

Cornish,  Dakin  v.  302 

Cornman,  Arnold  v.  450 


Corporation  of  Plymouth,  Atty. 

Gen.  V. 
Corporation   of    Yarmouth 


278 


Simmons 

450 

Correth,  ToUe  v. 

297 

'301 

Cottel  V.  Luttrel 

304 

Cotterell  v.  Griffiths 

291 

Cotton  V.  Pocasset  Man. 

Co. 

302, 
325 

Couch  V.  Burke 

472 

Coulson,  Newcomen  v. 

315 

455 

Council  of  Birmingham,  Atty. 

Gen.  V.  437 

County  Commissioners,  Den- 
ham  V.  130,  273,  488 
Courtauld  v.  Legh  210 
Cousens  v.  Rose  314 
Coutts  V.  Gorham  94,  191,  384 
Coventry,  Swanborough  v.  192 

Van  Hoesen  v.  301 

Covington  v.  Freking  182 

Cowfll  1-.  Thayer  250,  303,  306,  307 
Cowles  V.  Gray  182 

Cowling  V.  Higginson  279,  316 

Cowper,  Cocker  v.        3,  89,  90,  252 
Cox,  Austin  v.  94,  277 

George  v.  99,  351 

V.  Matthews         94,  191,  384 
Coyney,  Stafford  v.  181,  183 

Crafts,  Cave  v.  123 

Craig  V.  Craig  361 

Craig,  Craig  v.  361 

Grain  v.  Fox  468,  490 

Crawford,  Butterworth  v.  127 

White  V.  15,  464 

Crawshaw  v.  Sum«er  228 

Creighton,  Crysler  v.  89 

Greener.  367 

Crewson  v.  Grand  Trunk  R.  R,  241 
Crippen  v.  Morss  93 

Cromwell  v.  Selden  311 

Cronin,  McMillan  v.    281,  285,  346 
Crooker  v.  Bragg  301,  425 

Crosby,  Baker  v.  452,  487 

Hill  17.  136,174 

Crosland,  Lamb  v.  163,  165 

Cross  V.  Lewis  114,  203,  206 

Rex  v.  3  73 

Crossley  v.  Lightowler  71,  119,  308, 
358,  372,  424,  435,  439,  462 
Crounse  v.  Wemple  134 

Crow,  Jones  v.  239,  249 

Crowland,  Darby  v.  241 

Crowther,  Elwell  v.  424 


XXXIV 


TABLE   OF   CASES   CITED. 


Crump  V.  Lambei't      141,  189,  371, 

380 

Crysler  v.  Creighton  89 

Culvervvell  v.  Lockington  122 

Cuininings  v.  Barrett  298,  366 

Cunningham,  Tudor  Ice  Co.  v.    335 

Currie  v.  Gale  165 

Curriers'  Co.  v.  Corbett      192,  198, 

366,  394,  484 

Curtice  v.  Thompson  307,  428 

Curtis  V.  Keesler  164 

Curtiss  V  Ayrault  244 

Brooks  V.  228 

Hurd  V.  311 

V.  Noonan  472 

(  Stetson  V.  337 

V.  Hoyt  183 

Cuthbert  v.  Lawton  465 

Cutting,  Hill  v.  474 

Cutts,  Sweet  v.  66,  241,  242 


D. 

Dakin  v.  Cornish  302 

Dalton,  Angus  v.         135,  140,  161, 

221,  229,  233,  235 

Dana,  Evans  v.  127 

V.Valentine  30,366,371,382 

V.  Wentworth  367 

Dand  v.  Kingscote        26,  110,  267, 

351 

Daniel  v.  Anderson  13 

V.  North  113,  163,  165 

Daniels,  Cary  v.  239 

Darby  v.  Crowland  241 

Smith  V.        45,  222,  223,  294 

Dare  V.  Heathcote  317 

Dark  v.  Johnston  11,  89 

Darling  v.  Clue  149,  462 

Darlington  v.  Painter  302 

Darwin  v.  Upton  205 

Davenport,  Cobb  v.  7 

V.  Lamson  325 

Davey,  Roberts  v.  109 

Davidson  v.  Nicholson  113,  165 

Wakeley  v.  311 

Davies  v.  Marshall  91,  384 

V.  Sear  269 

V.  Williams  177,  179 

Davis,  Glenn  v.  460 

Lattimore  v.  242 

McLean  v.  462 

V.  Morgan  96,  467 


Dawes  v.  Hawkins  345 

Dawney  v.  Cashford  145 

Dawson,  Duke  of  Bedford  v.       355 

Plunileigh  v.  425 

V.  St.  Paul  Ins.  Co.    339,  368 
Day,  Austria  v.  365 

Spooner  v.  157 

De  Hart,  Earl  v.  368 

De  AVitt  V.  Harvey  93,  312 

V.  Ithaca  181 

Dean,  Fuhr  v.  3,  89 

'    Jarvis  v.  182 

Debenham,  Theed  v.  401 

Decorah   Woolen   Mill    Co.    v. 

Greer  283 

Dee,  Carrig  v.  207 

Deig,  AVild  v.  272 

DefVecchio,  Eno  v.  228 

Delaware  &  Hudson  Canal  Co., 

Selden  v.  474 

Delauiirie,  Armory  v.  443 

Delorme,  Haag  v.  177 

Den  V.  Baldwin  472 

V.  Jersey  City  181 

Denham    v.    County    Commis- 
sioners 130,  273,  488 
Dennett  v.  Stevens  v..  3,  169 
Dennis  v.  Sipperly  443 

V.  Wilson  99 

Denniston  v.  Clark  10 

Dent  V.  Auction  Mart  Co.    386,  397 
Denton  v.  Leddell  122,  457 

Depui,  Dyer  v.  429 

Des  Moines  v.  Hall  182 

Deshon  v.  Porter  312 

Desloge  v.  Pearce  472 

Devereux,  Pope  v.  490 

Dewey  v.  Williams  311 

Dewhirst  t'.  Wrigley  115 

Dexter  v.  Prov.  Aqueduct  Co.    253 
Dickenson    v.  Grand   Junction 

Canal  Co.  242,  248 

Dickey  v.  Tennison  272 

Dickinson  v.  Worcester  242 

Dilling  V.  Murray  66 

Dillman  v.  Hoffman  124 

Diuimet  v.  Eskridge  429 

Dixon,  Wimbledon    &    Putney 
Commons  Conservators  v.       316, 
317,  319,  347,  455 
Doane  v.  Badger  285,  346 

Branch  v.  425,  428 

Dodd  V.  Burchell  116,  268 

V.  Holme  43 


TABLE   OF   CASES   CITED. 


XXXV 


Doe  d.  Hanlcy  i".  Wood  5,  470 

Dod<;e  v.  McCliiitock  472 

DoUitrt'.  Boston  &  Maine  R.  R.   126 
Donahue,  Kelly  v.  131 

Donald,    National    Guaranteed 

Manure  Co.  v.    159,  1G3,  164,  451 
Donnell  r.  Clark  134 

Dorney,  Mertz  v.  307 

Doufjal  V.  Wilson  205 

Doughty,  Gray's  Inn  Soc.  v.  SO 

Dovaston  v.  Payne  8 

Dow,  Perkins  v.  301 

Stetson  V.  96,  266,  336 

Dowling  V.  Ilennings  228 

Dowson,  Maberley  v.  167 

Doyle  V.  Lord        121,  197,  205,  407 
Drake  v.  Wells  474,  475 

Drew,  Cole  i'.  130 

Drewell  v.  Towler  78 

Drewett  v.  Sheard  53,  463,  465 

DriscoU,  Gilniore  v.         38,  45,  232, 
292,  411,  485 
Roath  V.  iio,  253 

Dubuque  v.  Benson  182 

V.  Maloney  182 

Dubuque,  &c.  K.  R.,  Noll  r.        464 
Dudden  v.  Guardians  of  Clutton 

Union  54 

Dudley,  Bradley  Fish  Co.  v.      134, 

459 
V.  Horton  352 

Dudley  Canal  Co.  v.  Graze- 
brook  226,  422 
Dugdale  V.  Robertson  223 
Duinneen  v.  Rich  88,  472 
Duke  of  Bedford  v.  Dawson  355 
Duke  of  Buecleuch,  Wake- 
field V.  36,  185,  224,  294 
Duke  of  Devonshire  v.  Eglin  471 
Duke  of  Newcastle,  Jackson  u.  397, 

402 
Duke  of  Somerset  v.  Fogwell       89, 
96,  284 
Dumbell,  Ballacorkish  Mining 

Co.  V.  64,  253 

Duncan,  Ellis  v.  65,  253 

V.  Louch  17,  75,  76 

Duncomb's  case  343 

Dunham,  Parkins  v.  464 

Dunklee  y.  Wilton  R.  R.  123 

Dunnell,  Ingraham  i'.  366 

Durel  V.  Boisblanc  194,  208 

V.  Pritchard  366 

Durgin,  Clement  v.  472 


Durham,  Porter  r.  242 

Durham  &  Sunderland  R.  R.  v. 

Walker  109 

Dutcher  v.  Hayden  208,  408 

D wight  Printing  Co.  v.  Boston     67, 

254 
Dwinel,  Veazie  r.  239,  429 

Dyce  V.  Lady  James  Hay        5,  280 
Dyer  v.  Depui  429 

i;.  Saudford  4,  472,  489 

Russ  V.  126 

Dyers'  Co.  v.  King  387 

Dyson,  Ballard  v.  77,  279,  317 


E. 


Eadon  V.  Jefifcock  45,  223,  294 

Eames,  llittiuger  v.  299 

Earl  V.  De  Hart  368 

Earl    of    Dudley,    Stourbridge 

Canal  Co.  v.  226,  422 

Earl  of  Granville,  Hilton  v.  185,  224 
Earl  of  Lonsdale,  Atty.  Gen.  v.    61, 

432 
Earl  of  Romney,  Medway  Nav- 
igation Co.  V.  296 
Earl     of    Sandwich     v.    Great 

Northern  R.  R.  Co.  297 

East  India  House  Estates  Co., 

Isenberg  v.  366 

East  River  Bank,  Tallmadgey.  182, 

367 
Easter  v.  Little  Miami  R.  R.  79 

Eastman  v.  Amoskeag  Man.  Co.  428 
Eaton   V.  Swansea  Waterworks 

Co.  173 

Eckersley,  Tipping  v.  365 

Eden,  South  Metropolitan  Cem- 
etery Co.  V.  321,  454 
Edes,  Wood  V.  473 
Edgerton  v.  Huff  299 
Edgington, Morris  v.  28,97,  98,  101, 
268,  278 
Edson  V.  Munsell  163 
Edwards,  Bass  v.                   345,  350 
Reignolds  v.                178,  468 
Eggleston  v.  N.  Y.  &c.  R.  R.      472 
Eglin,  Duke  of  Devonshire  v.      471 
Elliot  V.  Fitchburg  R.  R.    301,  426, 

443 

V.  North  Eastern  R.  R.     226 

Elliotson  V.  Feetham  141 

Elliott,  North  Eastern  R.  R.  v.     39 


XXXVl 


TABLE   OF   CASES    CITED. 


Ellis  V.  Duncan  65,  253 

V.   Manchester  Carria£;e 

Co.  192,  198 

V.  IMayor  &  Corporation  > 

of  Bridgnortli  15 

Sibley  v.  136 

Eluiliirst  V.  Spencer  366,  426 

Elwell  V.  Crovvther  424 

Embrey  v.  Owen        53,  56,  69,  275, 

296,  300,  358,  426 

Emerson,  Adams  v.  6,  73,  130 

V.  Wiley  465 

Empie,  Borst  u.  15,99,311 

Ennor  v.  Barwell  54 

Hodgkinson  v.    68,  254,  258, 

439 

Eno  V.  Del  Vecliio  228 

Eslier,  Maynard  v.  198 

Eskridge,  Dimmet  v.  429 

Esling  V.  Williams  166 

Espley  V.  Wilkes  95,  265,  269 

Essex  Co.,  McFarlin  v.  7 

Estes  V.  Troy  181 

EulricL  V.  Ricliter  243 

Evangelical    Home   v.    Buffalo 

Hydraulic  Asso.  351 

Evans,  Codman  v.  6,  130,  186 

V.  Dana  127 

Hall  V.  216,  385 

V.  Merriweather  301 

Evansville,  Pettigrew  v.  242 

Everett,  Blake  v.  134 

Ewart  V.  Cochrane  116,  271 


Fairbanks,  Winthrop  v. 

99 

Fairhaven,  Lawrence  v. 

250 

Fall  River,  Brayton  v. 

438 

Farnsworth  v.  Taylor 

266, 

336 

Farnum  v.  Piatt 

345 

Farr,  Perrine  v. 

273 

Farrand  v.  Marshall 

34 

Faulkner,  Town  v. 

307 

Fay,  Bond  v. 

314 

V.  Salem  &  Danvers 

Aqueduct  Co. 

299 

Feetham,  EUiotson  v. 

141 

Fentiman  v.  Smith 

3,  89,  90 

Fenton,  Abson  v. 

110, 

352 

Ferguson  u.  Whit  sell 

477 

Fernald,  Pierre  i\         135, 

206 

220 

Ferrea  v.  Knipe 

301 

Ferris,  Union  Mills  v.  301 

Fetters  v.  Humphreys  122,  127,  270, 

457 
Fickas,  Taylor  v.  '  241 

Field,  Hodgson  r.  110,  275 

Owen  V.        10,  367,  368,  464, 
465,  489 
Fielder  v.  Bannister  350 

Fifty  Associates  v.  Tudor  207 

Finch  V.  Gt.  Western  R.  R.  315,  455 
Fineux  v.  Hovenden  433 

FinHnson  v.  Porter  109,  110,  276 
First  Baptist  Society  v.  Grant  79 
First   Parish    in  Gloucester   v. 

Beach  134 

First    Parish    in   jNIedford    v. 

Pratt  134 

Fisher  v.  Beard  182 

V.  Browse  182 

Pastorius  v.  425 

Fishmongers'  Co.,  Lyon  v.  446 

Fisk,  Canham  v.  283 

Franklin  v.  241 

Fiske,  Allen  v.  47 i 

V.  Wilbur  311 

Fitchburg  R.  R.,  Elliot  v.  301,  426, 

443 

Fitzhugh  V.  Raymond  276 

Flagg  V.  Flagg  130,  273,  488 

Flagg  V.  130,  273,  488 

Flannigain,  White  v.  96,  266 

Fletcher,  Gt.  Western  R.  R.  v.  226 

Palmer  v.      94,  191,  192,  384 

Ray  V.  306 

Wallace  v.  136,  165 

Flight  V.  Thomas  29,  141,  143,  178, 

189,  215 

Fogwell,  Duke  of  Somerset  v.  89,  96, 

284 

Foley,  Handy  v.  99 

Simper  v.  215,  397,  459,  476 

V.  Wyeth       34,  38,  413,  485 

Foot  V.  N.  H.  &  Northampton 

Co.  473 

Foote,  Parker  v.  135,  203,  209 

Forbes,  Cooke  v.  372,  380 

Ford,  Conneham  v.  181 

Gurney  v.  78,  367,  368 

Forsyth,  Rhea  v.  366 

Foster  v.  Browninw  4,  472 

Cai-r  V.        °       149,  178,  179 

v^.  Spooner  92 

Fox,  Grain  v.  468,  490 

V.  Hart  490 


TABLE   OF   CASES    CITED. 


XXXVll 


C5. 


Fox  V.  Purssell  384 

i».  Union  Sugar  Refinery     266, 
336,  339 
Foxall  V.  Venables 
Franiinghani,  Parker  i7. 
Francis,  Greenleaf  y- 

Laumier  t'. 
Franklin  v.  Fisk 
Frazier  v.  Brown 
Frearson,  Howton  v. 
Freeman,  Wright  r. 
Freking,  Covington  i' 
French,  Absor  v. 

Clarke  v. 

V.  !Marstin 

V.  Morris 

Frewen  v.  Philipps  14,  32,  174,  211, 

214 
Frick,  Baker  v.  331 

Frost,  Wolfe  v.  472 

Fry,  Richards  v.  147 

Fuhr  V.  Dt'an  3,  89 

Fuller,  Hull  1-.  276 

Tonilin  v.  314 

Fnlton,  Caldwell  v.  5,  222 

Furber,  Garland  v.  331 


164 
266,  359 
60,  253 
242 
241 
241,  248 
267 
207,  465,  491 
182 
343 
443 
326 
10 


G. 

Gale,  Currie  v. 

Marston  v. 
Galland,  Pinnington  v.  98,  267, 

Ganley  v.  Looney 
Gannon  v.  Hargadon 
Gardiner,  Onley  v.      112,  153, 

V.  Tisdale 
Garfield,  Perrin  v. 
Garland  v.  Furber 

V.  Hodsdon 
Garrett  v.  Jackson 
Gary,  Gleason  v. 
Gates  r.  Blincoe 
Gateward's  case 
Gaved  V.  Martyn  20,  25,  56,  61 
132,  170,  173,  244, 
Gaw  V.  Hughes 
Gayetty  I'.  Bethune     101,136, 

Gayford  v.  Moffatt    12,  14,  26, 

Gee,  Atty.  Gen.  v.  435, 


165 
474 
350, 
465 
312 
241 
173, 
176 
181 
465 
331 
812 
135 
429 
429 
164 
,88, 
251 
266 
173, 
270 
267, 
320 
437 


Gehrung,  Klein  r. 
Geiger,  Prentice  v. 
Gell,  Arkwright  v. 

Gemmel,  Myers  i-. 
Gentleman  r.  Soule 
George  v.  Cox 
Gerber  v.  Grabel 
Gerenger  v.  Summers 
Germantown   Water    Co 

Callura  V. 
Gerrard  v.  Cooke 
Gifford,  Jesser  v. 

Reid  V. 
Gilbert,  Partridge  v. 

V.  Peteler 
Giles  r.  Simonds 
Gilford  V.  Lake  Co. 
Pattisson  v. 
Gill,  Hext  c. 
Gillett,  Aurora  v. 
V.  Johnson 
Gillham  v.  Madison  R 
Gillingham,  Harris  v. 
Gillis,  Ryckman  v. 
Gillon  V.  Boddington 
Gilmore  v.  DriscoU 


208 

239,  258,  309 

61,  139,  101, 

167,  244,  251 

197,  205 

182 

99,  351 

209 

303 

Mc- 

67,  258 

285,  346 

359 

366,  382 

228,  295 

89,  367 

470,  4  74 

307 

365 

5,  26,  3G,  222 

242 

301 

.  R.  242 

473 

45,  2-22,  294 

356,  420 

38,  45,  232, 

292,  411,  485 

297,  300 

269 


Gilraour,  Miner  r, 
Gilsey,  Wheeler  v. 
Gimson,  Worthington  v.      104,  117 
Girdlers'  Co.,  Colebeck  v.  285,  295, 

346 
Gladfelter  v.  Walker  309 

Glamorganshire  Canal  Naviga- 
tion Co.  V.  Blakemore 


Glave  V.  Harding 
Glean,  Pierson  v. 
Gleason  v.  Gary 
Glenister,   Skull  v. 

Glenn  v.  Davis 
Glover,  Aynesley  v. 


129 

117,  265 

429 

429 

98,   284,  321, 

324 

460 

144,  213,  366, 

388,  395,  404 

V.  Coleman,        144,  148,  180 

Goble,  Martin  v.  281,  290,  405 

Godfrey,  Macomber  v.  55 

Goldsmid   v.  Tunbridge  Wells 

Imp.  Com.  259,  308,  423,  432,  434 
Goldwin,  Tenant  v.  47,  198,  258 
Gomme,  Allan  v.  317,  453 

Goodale,  Amoskeag  Man.  Co.  v.  449 
V.  Tuttle       65,  241,  248,  429 
Goodrich  v.  Burbank  10 


XXXVlll 


TABLE   OF   CASES   CITED. 


Goold  V.  Great  Western  Deep 

Coal  Co.  26,  109 

Gorhani,  Coutts  v.  94,  191,  384 

Goring,  Holmes  v.  28,  267,  268, 

319,449,  452,  486,  488 
Gormley  v.  San  ford  242 

Goudy.  Standiford  v.  122 

Gould,  Corning  v.  450,  465 

Gowen  V.  Phila.  Ex.  Co.      134,  182 
Grabel,  Gerber  v.  209 

Grace,  Talbott  i'.  186 

Grabam,  Hyde  v.  406,  475 

Grand    Junction     Canal     Co., 

Dickenson  v.  242,  248 

r.  Shugar  40,  55,  67 

Grand  Trunin  R.  R.,  Crewson  v.  241 
Grant,  Bissell  v.  11,  27  7 

V.  Chase  101,  193,  487 

First  Baptist  Soc.  v.  79 

McGuire  v.  45,  411 

Grave,  Ladyman   v.      12,   149,  174, 

216 
Grave,  Robinson  v.  191 

Gray  v.  Bond  114,  166 

Cowles  V.  182 

Gray's  Inn  Soc.  v.  Doughty  80 

Grazebrook,      Dudley      Canal 

Co.  V.  226,  422 

Great  Eastern   R.   R.,    United 

Land  Co.  v.      129.  276,  281,  314, 

315,  338,  453,  455 

Great  Falls  Co.  v.  Worster  429 

Great  Northern  R.  R.,  Earl  of 

Sandwich  v.  297 

Swaine  v.  381 

Great  Western  Deep   Coal  Co. 

Goold  V.  26,  109 

Great  Western  R.  R.  v.  Bennett  226 

Finch  V.  315,  455 

V.  Fletcher  226 

Greatrex  v.  Hay  ward  167,  244 

Greeley,  Bliss  v.  65 

Green  v.  Canaan  182 

Greene  v.  Chelsea  182 

V.  Creighton  367 

Greenleaf  v.  Francis  65,  253 

Greenslade  v.  Halliday         281,  362 
Greer,    Decorah   Woolen   Mill 

Co.  V.  283 

Gregorie,  Middleton  v.  250 

Screven  v,  452 

Gregory,  Beatty  v.  474 

Griesemer,  Kauffman  v.  242 

Griffin  v.  Bartlett  307 


Griffiths,  Cotterell  v.  291 

Grigsby  v.  Clear  Lake  Co.  307 

Griswold,  Parker  v.  301 

Groton  v.  Haines  429 

Grove,  Ogden  v.  271 

Groves,  Rose  v.  446 

Guardians    of    Glutton  Union, 

Dudden  v.  54 

Guest  V.  Reynolds  190,  209 

Guggenheim,  Royce  v.  200 

Gurney  v.  Ford  78,  367,  368 

Guthrie  t\  New  Haven  183 

Gwynn,  Carpenter  v.  182 


H. 


Haag  r.  Delorme 

177 

Hackett  v.  Baiss 

401 

Hadden,  Woodyer  v. 

182, 

320 

Hadley,  Lide  v. 

270 

Hagar,  Coolidge  v. 

100 

123 

Haines,  Groton  v. 

429 

Roberts  v. 

224, 

294 

V.  Taylor 

365 

Haldeman  v.  Bruckhardt  65,  248 

Hale  V.  McLeod  263 

V.  Oldroyd  462,  468,  489 

Hall  V.  Augsbury  302 

Bliss  V.  29,  141,  189,  373 

Brunton  v.  314 

V.  Com.  of  Lincoln  273 

Des  Moines  r.  182 

V.  Evans  216,  385 

V.  Lund  111 

V.  McLeod  182,  271 

Moore  v.  404 

V.Nottingham  19 

r.  Swift  178,456,457 

Halliday,  Greenslade  V.  281,362 

Halsey,  Knight  v.  204 

Haniboro,  Hutton  v.  332 

Hamer  v.  Knowles  420 

Hamilton    v.   Vestry   of  St. 

George  285,  346 

Hammond,  Housee  v.  239 

Langley  v.  104,  107 

Tyler  V.  457,488 

V.  Zehner  135 

Hampton,  Taylor  v.  450 

Hancock,  Sharpe  v.  129 

Thurston  v.    34,  38,  411,  485 

V.  Wentworth  450 

Handy  v.  Foley  99 


TABLE   OF  CASES   CITED. 


XXXIX 


Hankinson,  Holford  v.  144, 185,  240, 

2(J3 
Hanmer  ik  Chance  151 

Hanna,  Watxner  r.  11 

Harback  v.  Bbston  79,  131 

Harbidge  v.  Warwick  174,  176, 

214,  215,  216 
Harding,  Glave  v.  117,  265 

V.  Wilson  95,  265 

Harford,   Monmouthshire    Ca- 
nal Co.  V.        170,  174,  175 
Russell  V.  12 

Hargadon,  (Jannon  v.  241 

Hark  ins,  O'Neil  v.  411 

Harlan,  Carter  v.  473 

Harper  v.  Parish  of  the  Advent  134 
Richards  v.  225 

Harrington,  Jackson  v.  306 

Harris,  Aniidon  v.  10 

BufTum  V.  66,  241 

V.  Gillingham  4  73 

V.  Rvding       34,  43,  222,  294 
V.  Smith  101,  122 

Springfield  v.  301 

Harrison,  Ballacorkish  Silver, 
Lead,  and  Copper 
Mining  Co.  v.  54 

Bullard  v.  268,  342,  343 

Wallis  r.  471,475 

Wyatt  V.        34,  42,  410,  485 
Harrop  v^  Hirst  357,  433 

Hart  V.  Conner  351 

Fox  V.  490 

Osborn  v.  271 

V.  Vose  250 

Hartman,  Stewart  v.  272 

Hartshorne  v.  South  Reading       368 
Harvey,  De  Witt  v.  93,  312 

V.  Walters  78,  456,  459 

Harwood  v.  Benton  65 

Haskell  V.  New  Bedford  438 

Haskins  v.  Haskins  301 

Haskins  v.  301 

Hastings,  Smyles  v.       96,  266,  269, 
270,  350,  464 
Hathaway,  Jackson  v.  130 

Hauck,  Stein  v.  208,  220 

Havens  v.  Klein  122 

Haverstick  v.  Sipe  207 

Hawker,   Wickhara  v.  7 

Hawkins  v.  Carbines    332,  345,  382, 

449 
Dawes  v.  345 

V.  Wallis  78 


Hayden  v.  Dutcher  208,  408 

Hayes  v.  Richardson  473 

V.  Waldron  239 

Hayford  v.  Spokesfield         468,  489 

Hays  V.  Hays  242 

Hays  V.  242 

Hay  ward,  Greatrex  v.  167,  244 

Hazard,  Hickey  »'.  299 

V.  Robinson  457 

Headon,  Martin  v.  386 

Heald  i;.  Casey  65 

Heath  v.  Bucknall         363,  394,  457 

V.  Ricker  79 

V.  Williams  239,  429 

Heathcote,  Dare  y.  317 

Heaton,  Knight  v.  461 

Hecbt,  Kuhlman  v.  96 

Heigate  v.  Williams  457,  476 

Hemphill  V.  Boston  181 

Henderson,  Alves  y.  461 

Hennessey  v.  Old  Colony  R.  R.     265 

Henning  v.  Burnet        275,  321,  454 

Winfield  v.  82,  367 

Hennings,  Dowling  v.  228 

Henn's  case  343 

Herrick  v.  ^larshall  99 

Hershey,  Wissler  v.  269 

Hervey  v.  Smith  78,  361,  4  71 

Herz  V.  Union  Bk.  of  London    217, 

219,398 

Hetfield  v.  Cen.  R.  R.  472 

Hew  Singers,  Stokoe  v.        373,  489 

Hewett,  Wood  v.  78 

Hewitt  V.  Isham  92 

Hewlins  v.  Shippam  1,  3,  89 

Hext  V.  Gill  5,  26,  36,  222 

Heydon,  Staples  v.  145 

Hickey  v.  Hazard  299 

Hickman's  case  273 

Hide  V.  Thornborough  42,  140,  229 

Hieatt  r.  Morris  208,  228 

Higginson,  Cowling  v.  279,  316 

Hiidreth  v.  Lowell  6,  130 

Hill,  Bower  v.      338,  357,  452,  461, 

462,  476 

V.  Crosby  136,  174 

V.  Cutting  474 

V.  Hill  474 

Hill  V.  474 

17.  Lord  7,  69 

Mason  v.      56,  249,  252,  358, 

424,  462 

V.  Sayles  36  7 

V.  Tupper  9,  15,  21,  22 


xl 


TABLE   OF   CASES   CITED. 


Hilton  V.  Earl  Granville       185,  224 

Perley  v.  250 

Hinde  i\  Chorlton  79 

Hirst,  Harrop  v.  357,  433 

Hittin^er  v.  Eames  299 

Hoarer  Clifford  u.  5,332 

V.  Metro.  Board  of  Works  78 
Hobbs  V.  Lowell  181,  182 

Nudd  V.  181 

Hoboken,  Ti'ustees  v.  181 

Hoddinott,  Sampson  v.  24,  51,  157, 

252,  275,  300,  358,  424 

Hodges  V.  Hodges  428 

Hodges  V.  428 

V.  Raymond  239,  429 

Hodgkinson  'v.  Ennor    68,  254,  258, 

439 
Hodgson  V.  Field  110,  275 

Proctor  17.  28,  268,  269,  486 
Hodkinson,  Popplewell  v.  39,  94,  227 
Hodsdon,  Garland  v.  312 

Hoffman,  Dillman  v.  124 

Holback  r.  Warner  145 

Holbrook,  Arnold  v.  341,  343 

Lasala  v.  34,  38,  411 

Holdane  v.  Trustees  183 

Holden  v.  Tilley  160 

Hole  V.  Barlow  30,  374,  375 

Holford  V.  Hankinson   144, 185,  240, 

263 
Holker  v.  Poritt  49,  55 

Holland,  Panton  v.  411 

Holliday,  Sloan  v.  316 

Hollis  V.  Proud  324 

Holme,  Dodd  v.  43 

Holmes  v.  Goring  28,  267,  268,  319, 
449,  452,  486,  488 

V.  Seeley  185,  269,  343,  346, 
350,  452 
Holms  V.  Seller  96,  108 

Holsman  v.  Boiling  Spring  Co.  239, 
367,  436 
Holt,  Mason  v.  473 

Holton,    Conn.    &   Passumpsic 

R.  R.  V.  130 

Hook,  Oliver  v.  11,  101,  122 

Hooker,  Stiles  v.  250,  307 

V.  Utica  &  Minden  Turn- 
pike Co.  131 
Hopwood  V.  Scbofield  359 
Horn,  Legg  v.  136 
Home  V.  Taylor  449 
Horner  v.  Stillwell                        307 

V.  Watson  34,  222 


Horton,  Dudley  v.  352 

Houghton,  Bankart  v.  91,  382 

Houpes  V.  Alderson  331 

Housee  v.  Hammond  239 

Houston  V.  Laffee  '  4  72,  473 
Hovenden,  Fineux  v.  433 

Hovey  v.  Mayo  10 

Howard  v.  Rogers  266 

Wright  v.      24,  57,  249,  252, 

275,  296,  355,  357,  424 

Howe  V.  Alger  96,  265,  266 

Howe  S^'ale  Co.  v.  Terry  429 

Plowell,  Barclay  v.  130 

V.  King  324,  326 

Howland,  Chandler  v.  301 

Howton  V.  Frearson  267 

Hoy  V.  Sterrett  207 

Hoyt,  Curtiss  v.  183 

V.  Hudson  241 

Hubbard  v.  Town  208 

Hubbell  V.  Warren  82,  367 

Hubbuck,  Cooper  v.  148,  290 

Hudson  V.  Tabor  59 

Hoyt  V.  241 

Hudson  River  R.  R.,  Ludlow  v.  294 
Hudspeth,  Winship  v.  160,  163,  168 
Huff,  Edgerton  v.  299 

V.  McCauley  7,  69,  88 

Hughes,  Gaw  v.  266 

Hugo,  Keats  i'.  79,  196,  207 

Huh,  Cook  V.  301 

V.  Fuller  276 

Hulme  V.  Shreve  425 

Humphreys,  Fetters  v.  122, 127,  270, 

457 

Humphries  v.  Brogden      34,  35,  42, 

230,  293,  409 

Hungerford,  Munson  v.  182 

Hunt,  Kirkendall  v.  36  7 

V.  Peake  34 

Hurd  V.  Curtis  311 

Hurlbut  V.  Leonard  250 

Hurley,  Morrill  v.  241 

Northam  v.         108,  275,  426 
Huskinson,  Poole  v.  181 

Huson  V.  Young  331 

Hussey,  Butman  v,  425 

Hutchinson  v.  Copestake  389 

Ingraham  v.  204,  249 

Shadwell  v.  359,  360 

Huttemeier  v.  Albro  99 

Hutto  V.  Tindall  490 

Hutton  V.  Hamboro  332 

Hyde  v.  Graham  406,  475 


TABLE   OF   CASES   CITED. 


xli 


Hyde,  v.  Jamaica 
Hynds  v.  Shults 


183 
307 


Illius,  Brown  v.  254,  439 

ImhofF,  Kieffer  u.  123,45  7 

Imperial  Gas  Co.,  Butt  v.  81,  82 
In  re  INIercer  Street  96,  265 

India  Wharf,  Central  Wharf  v.  450 
Inge,  Liggins  r.  90,  471 

Ingraham  v.  Dunnell  366 

V.  Hutchinson  204,  249 

Ingram  v.  Morecraft  346 

Inhabitants  of  Bradfield,  Reg.  v,  76 
Inhabitants     of      Greenhow, 

Reg.  V.  341 

Inhabitants  of  Hornsea,  Reg.  v.  341 
Inhabitants  of  Mellor,  Rex  v.  26 
Ireson,  Newhall  v.  301,  425,  426 
Isenberg  v.  East  India  House 

Estates  Co.  366 

Ishani,  Hewitt  v.  92 

Ismay,  Mounsey  v.  2,  9,  18,  111, 
132,  138,  141,  164 
Ithaca,  De  Witt  v.  181 

Ivimey  v.  Stocker  20,  88 


J. 


Jack,  Yates  v.  287,  386,  404 

Jackson  v.  Duke  of  Newcastle  366, 

397,  402 

"    Garrett  v,  135 

V.  Harrington  306 

V.  Hathaway  130 

Russell  V.  270,  331 

V.  Stacey  77,  314,  317 

Jacksonville  v.  Lambert  242 

Jacobs  V.  Allard  239 

Vestry  of  St.  Mary,  New- 

ington,  V.    6,  73,  181,  280 

Jamaica,  Hyde  v.  183 

Jamaica  Pond  Aqueduct  Co.  v. 

Chandler  4,  461,  464 

Chandlery.         277,351,465 

James  v.  Plant      12,  102,  104,  459, 

476 

Williams  v.       275,  279,  317, 

324,  326,  455 

Jamieson,  Bailey  v.  491 

Janes  v.  Jenkins  194,  207,  292,  407 


Jaqui  V.  Johnson 
Jarvis  v.  Dean 
Jasper,  Laney  v. 
Jay,  Salters'  Co.  v. 
Jeffcock,  Eadon  v. 
Jefferson,  Arnold  v. 
Jeffries  v.  Jeffries 

Jeffries  v. 

V.  Williams 
Jenkins,  Janes  v. 


351 

182 

242 

211 

45,  223,  294 

397,  406 

367 

367 

415 

194,  207,  292, 

407 

Jenks  V.  W^illiams  81 

Jennison  v.  Walker       72,  276,  277, 

312,  351,  464,  465,  489 

Jermaine,  Waggoner  v.  428 

Jersey  City,  Den  v.  181 

Jesser  v.  Gilford  359 

Jewell  V.  Lee  367 

Jewett  V.  Jewett  464 

Jewett  V.  464 

Johnson,  Cari'ick  v.  343 

Codling  V.  •  337 

Conistock  V.  121 

Gillett  V.  301 

Jaqui  V.  351 

V.  Jordan  124,  126 

V.  Kinnicutt  334 

V.  Lewis  428 

V.  Long  360 

Lord  Manners  v.  81,  85 

Milleohanip  v.  19 

New  River  Co.  v.        64,253 

Parsons  v.  101,  127 

Phipps  V,  333 

V.  Rand  304,  311 

Sabine  v.  307 

V.  Thoroughgood  78 

Johnston,  Baker  v.  182 

Dark?;.  11,89 

Joliet  V.  Verley  183 

Jolliffe,  Rex  v.  5,  73,  280 

Jones,  Brouwer  v.  367 

City  of  Quincy  v,  411 

V.  Crow  239,  249 

Penn.  R.  R.  v.  124 

V.  Percival  72,  185,  277,285, 

347,  351,  444 

Robbins  v.  182 

Seavey  f.  99,100 

Smart  v.  90,  361 

V.  Tapling  390 

Taolingu.  32,  144,  158,  190, 

212,  290,  310,  481,  482 

V.Wagner  34,222 


xlii 


TABLE   OF   CASES   CITED. 


Jordan,  Johnson  v. 
Judtre  V.  Lowe 


K. 


124, 126 
475 


Kaler  v.  Beaman  311 

Karr,  Roberts  v.  95,  269 

Kauffman  v.  Griesemer  -242 

Kay  V.  Oxley  104 

V.  Stallman  408 

Keats  V.  Hugo  79,  196,  207 

Keep,  Rutland  v.  174 

Keesler,  Curtis  v.  164 

Keiper  v.  Klein  198,  200 

Kelk,  Aroedeckne  v.  397 

V.  Pearson  287,  289 

Kellogg  V.  Malin  130 

Kelly  V.  Donaboe  131 

Ricker  r.  472 

Kelson,  Watts  v.  27,  104,  118,  268, 

314,  456 

Kempton,  Burnbam  v.        302,  307, 

366 

Kennedy,  Bliss  v.  366 

Kent  V.  "Waite  99,  174,  184 

Keppell  V.  Bailey  15,  21,  323 

Kern,  Rerick  v.  474 

Kerr,  Alexander  v.  425 

Kidgill  V.  Moor  359,  444 

Kieffer  v.  Imhofe  123,  457 

Kilburn  v.  Adams  132,  134 

Killbuck  V.  Private  Road  273 

Kimball  v.  Cocbeco  R.  R.  269 

Kincaid,  Allen  v.  271 

Kinard,  Smitb  v.  270 

King,  Dyers'  Co.  v.  387 

Howell  V.  324,  326 

V.  McCully  366 

V.  Miller  135 

Rocbdale  Canal  Co.  t\  91,  471 

Kingscote,  Dand  v.       26,  110,  267, 

351 

Kinlocb  v.  Nevile  172 

Kinnicutt,  Jobnson  v.  334 

Kirkendall  v.  Hunt  367 

Kitcbenman,  McCarty  v.  124 

Kitcbin,  Lord  Norbury  r.     298,  358 

Klein  v.  Gehrung  208 

Havens  v.  122 

Keiper  v.  198,  200 

Knight  V.  Halsey  204 

V.  Heaton  461 

Knipe,  Ferrea  v.  301 


Knowles,  Hamer  v.  420 

I'.  Richardson  80 

Stroyan  v.  38,  410,  485 

Koonj,  Ramesbur  v.  69 

Koonj  Behari   Pattuk,  Rame- 
sbur Pershad  Narain  Singh  v.  262 

Kublman  v.  Hecht  96 


Lacy  V.  Arnett  307,  474 

Lade  v.  Shepherd  182 

Lady  James  Hay,  Dyce  v.        5,  280 
Ladvman  v.  Grave         12,  149,  174, 

216 
Laffee,  Houston  v.  472,  473 

Laing,  Wbaley  v.     4,  254,  440,  443 
Laird  v.  Birkenhead  R.  R.  471 

Lake,  Lee  v.  182 

Lake  Co.,  Gilford  v.  307 

Lake   Shore,  &c.    R.  R.,    On- 

thank  v.  276 

Lamb  v.  Crosland  163,  165 

V.  Walker  419 

Lambert,  Crump  v.  141, 189,  371,  380 

Jacksonville  v.  242 

Lampman  v.  Milks  123,  193 

Lamson,  Davenport  v.  325 

Pratt  V.  311 

Lancaster  Mills,  Pitts  v.  301 

Laney  v.  Jasper  242 

Lanfrancbi  v.  Mackenzie    158,  213, 
217,  281,  289,  290,  394 
Langham,  Sadler  v.  271 

Langley  v.  Hammond  104,  107 

Lawson  v.  150 

Perley  v.  15,  184 

Lanier  v.  Booth  122 

Lapham,  Anthony  v.  301 

Miller  v.  457 

Large  v.  Pitt  13,  93,  96,  145 

Larned  v.  Larned  490 

Larned  v.  490 

Larnard,  Prentiss  v.  366 

Lasala  v.  Holbrook  34,  38,  411 

Lattimer  v.  Livermore  99 

Lattimore  v.  Davis  242 

Lauback,  Miller  v.  242 

Laumier  v.  Francis  242 

Law,  Murgatroid  v.  157 

Lawrence  v.  Fairhaven  250 

V.  Obee  463 

Lawson  i;.  Langley  150 


TABLE   OF   CASES   CITED. 


xliii 


Lawton,  Cuthbert  v.  465 

V.  Rivers  268 

V.  Ward  328 

Le  Fleming,  Shuttleworth  v.  9 

Leadbitter,  Wood  v.  4,  90,  284,  361, 

469 

Learned,  Coolidge  v.  136 

Leddell,  Denton  v.  122,  457 

Lee,  Jewell  t'.  36  7 

V.  Lake  182 

Smith  V.  351,  490 

Whitney  v.  339 

Wynstanley  V.  157,160 

Leech  v.  Schweder  23,  202,400,  402 

Waugh  V.  182 

Leeds,  Read  v.  5,  130 

Leeds  Corporation,  Atty.  Gen.  v.  437 

Lefever,  Bryant  v.  188 

Legg  V.  Horn  136 

Leirh,  Courtauld  r.  210 

Lehigh  Valley  R.  R.  v.  McFar- 

lan  173 

Leonard,  Ilurlbiit  v,  250 

r.  Leonard    99,174,271,345 
Leonard  v.    99,  174,  271,  345 
Leroy  v.  Piatt  1 24 

Leslie,  Shed  v.  312 

Lessees  of  Lord  Berkeley,  Mor- 
ris V.  397 
Lesure,  Ruggles  v.                    4,  473 
Lethridge,  Chichester  v.         75,  317 
Levan,  Seibert  V.  123 
Lewis,  Cross  I).                114,  203,  206 
Johnson  v.                           428 
V.  Price                                 205 
V.  Stein                                 436 
Lewiston,  Proctor  v.                       182 
Lidbetter,  Cavey  v.         30,  374,  375 
Lide  V.  Hadley                               270 
Liford's  case  92 
Liggins  V.  Inge                        90,  471 
Lightowler,  Crossley  i'.          71,  119, 
308,  358,  372,  424,  435,  439, 
462 
Lilley,  Waters  v.                       7,  186 
Lillywhite  i-.  Trimmer                  43  7 
Lincoln  v.  Lincoln                         313 
Lincoln  v.                             313 
Stowell  V.                     301,  425 
Lingwood  v.  Stowmarket  Co.       436 
Linzee  v.  Mixer                               367 
Lipscombe,  Bland  v.  7 
Little  Miami  R.  R.,  Easter  v.       79 
Littlefield,  Riddle  v.                     121 


Livermore,  Lattimer  v.  99 

Livett  r.  Wilson  114,  173 

Livingston  v.  McDonald  242 

V.  ]\Iayor  of  New  York  265 
Lloyd,  Barnes  v.  99,  464,  465,  489 
Loach,  Barnes  v.  131,  290,  385 

Lock,  Smith  v.  95 

Lockington,  Culverwell  v.  122 

Lombard,  Merrifield  v.  67,  254,  366, 
368,  436 
London  &  Birmingham  R.  R., 

Semple  r.  75 

London  &  North  Western  R.  R. 

V.  Ackroyd  226,  422 

Nield  V.  48,  59 

Long,  Johnson  v.  360 

Long  Island  R.  R.,  Pitkin  v.  89 

Wagner  i-.  241,  243 

Lotisdale  Co.  v.  Moies  10 

Loomis,  Olmsted  V.  311 

Loonev,  Ganley  v.  312 

Lord,  Doyle  v.      121,  197,  205,  407 

Hill  V.  7,  69 

Lord  Byron,  Robinson  v.  430 

Lord  Manners  v.  Johnson        81,  85 
Lord  Montfort,  Sutton  v.  163 

Lord  Norbury  v.  Kitchin      298,  358 
Lothrop.  O'Linda  v.  95,  266 

Louch,  Duncan  v,  17,  75,  76 

Lovcll  V.  Smith     467,  468,  489,  491 
Lovering,  Carlyoni'.       20,  142,  158, 

185 
Low,  Commonwealth  t;.  181 

Rust  V.  79 

Lowe  t'.  Carpenter  112,  148 

Judge  V.  475 

Lowell,  Hildreth  v.  6,  130 

Hobbs  V.  181,  182 

V.  Smith  461 

Luce,  Nichols  v.    269,  270,  271,  350, 

351 
Lucy,  Peers  v.  7 

Ludlow  V.  Hudson  R.  R.  294 

Lund,  HalU.  Ill 

Luther  v.  Winnisimraet  Co.         243 
Luttrel,  Cottel  v.  304 

Luttrel's  case,  456 

Lyford,  Odiorne  v.  302 

Lyman  v.  Arnold  130 

Lynch  v.  Mayor  241 

Trustees  v.  99 

Lynes,  Ray  v.  210 

Lyon  V.  Fishmongers'  Co.  446 

V.  McLaughlin  366 


xliv 


TABLE   OF   CASES   CITED. 


M. 


Maberley  r.  Dowson  167 

Mabie  v.  Matteson  11 

Mackenzie,  Lanfrancbi  v.  158,  213, 
217,  281,  289,  290,  394 
Macomber  v.  Godfrey  55 

Macord,  Roberts  v.  188,  216 

Madison  R.  R.,  Gillham  v.  242 

Maban  v.  Brown     32,  33,  131,  190, 
203,  205 
Mabon  v.  N.  Y.  Cen.  R.  R.  131 

Maloney.  Dubuque  v.  182 

Malin,  Kellogg  v.  130,  192,  198 

IMancbester  &  Sbeffield  R.  R., 

Saxby  V.  360,  427 

Manchester  Carriage   Co.,  El- 
lis V.  192,  198 
Manning  v.  Smith                 124,  457 
V.  Wasdale  7 
March-  v.  Sbults                            307 
Marquardt,  Morrison  v.   2,  198,  208 
Marquis,  Rexford  v.                      464 
Marshall,  Brewer  v.               82,  367 
Daviesu.                       91,384 
Farrand  v.                             34 
Herrick  v.                              99 
Morse  v.                               306 
r.  Peters                              299 
V.  Trumbull                            94 
V.  Ulleswater  Steam  Nav. 
Co.                                   320 
Marsbfield,  Thomas  v.                  134 
Marstin,  French  v.                         326 
Marston  v.  Gale                              474 
Martin,  Clark  v.                             367 
V.  Goble      281,  290,  405,  474 
V.  Headon                           386 
V.  Riddle                               242 
Marten,  Thurber  v.                       301 
Martyn,  Gaved  v.       20,  25,  56,  61, 
88,  132,  170,  173,  244,  251 
Marvin  v.  Brewster  Min.  Co.        34, 
222,  294 
Mason,  Atlantic  Mills  v.               459 
V.  Hill  56,  249,  252,358,424, 
462 
V.  Holt                                   473 
V.  Shrewsbury  &  Here- 
ford R.  R.     16,  58,  61,  88, 
142,  167,  251,  449,  468 
Matteson,  Mabie  y.                          n 
Matthews,  Cox  v.            94,  191,  384 
Maxwell  V.  McAtee                      331 


Mayfield  v.  Robinson  89,  284 

Maynard  v.  Esber  198 

Mayo,  Hovey  v.  10 

Mayor,  Lvnch  v.  241 

Mitchell  D.  232,411 

Mayor  of  Baltimore  v.  Appold  296 
Mayor  of  Bath,  Cook  v.  462,  463 
Mayor  of  Brooklyn,  Radcliff  u.      34, 

411 
Mayor  &  Commonalty  of  Lon- 
don, Peyton  v.  44 
Mayor  &  Corporation  of  Bridg- 
north, Ellis  V.  15 
Mayor  of  Birmingham  v.  Allen  36 
Mayor  of  London  v.  Pewterers' 

Co.  215 

Mayor  of  New  York,  Livings- 
ton V.  265 
Mayor,  &c.  of  Plymouth,  Attv. 

Gen.  V.  '     109 

Mayor    of    Plymouth,   Blatch- 

ford  V.  25,  275 

McAtee,  Maxwell  v.  331 

McBryde,  Warner  v.  199 

McCallum  v.  Germantown  Wa- 
ter Co.  6  7,  258 
McCarty  v.  Kitchenman  124 
McCauley,  Huff  v.  7,  69,  88 
McChesney,  O'Reiley  v.  239 
McClenaghan,  Pearce  v.  460 
McClintock,  Dodge  v.  472 
McCready  v.  Thomson  207 
McCully,  King  v.  366 
McDermott,  Western  v.  81 
McDonald,  Livingston  v.  242 
Townsend  v.  250 
McDuffie,  Pingree  v.  122,  269 
McFarlan,  Lehigh   Valley   K. 

B..V.  173 

McFarlin  v.  Essex  Co.  7 

McGillivray  v.  Millin  241 

McGregor  v.  Wait  114 

McGuire,  Baker  v.  307 

V.  Grant  45,  411 

McKechnie  v.  McKeyes  302 

McKee,  Capers  v.  346 

McKeyes,  McKechnie  v.  302 

McLaughlin,  Lyon  v.  366 

Randall  v.  125 

McLean  v.  Davis  462 

McLeod,  Hale  v.  263 

Hall  V.  182,  271 

Waugh  V.  182 

McMillan  v.  Cronin      281,  285,  346 


TABLE   OF   CASES   CITED. 


xlv 


McMurray,  Baxendale  v.     309,  456 
McNab  V.  Adamson  250,  302 

McQuestein,  Burnbam  v.  134 

Mebane  v.  Patrick  165 

Medway  Nav.    Co.  v.  Earl   of 

Romney 
Mellor  V.  Watkins 
Melvin  V.  Proprietors  of  Locks 
&  Canals 
V.  Wbiting  7, 

Mercer  v.  Woodgate 
Merchant    Taylors' 

Truscott  V. 
Merrifield  v.  Lombard  67,  254,  366, 
368,  436 
V.  Worcester 
Merriweather,  Evans  v. 
Merryweatber,    Rugby    Char- 
ity V, 
Mertz  I'.  Dorney 
Mesier,  Campbell  v. 
Metcalf  V.  Bingham 
Metroj)olitan     Association    v. 

Petcb  359, 

Metropolitan  Board  of  Works, 
Hoare  v. 
V.  Metropolitan  R.  R. 
Reg.  V. 
Metropolitan  R.  R.,  Metropol- 
itan Board  of  Works  v, 
Middleton  v.  Gregorie 
Midland  R.  R.,  Bell  v.  359,  360,  444 
V.  Checkley  422 

Rangeley  v.  8,  73,  87 

Miles  V.  Tobin  384 

Milks,  Lampman  r.  123,  193 

Mill  V.  Commissioners  of  New 

Forest  159,163 

Mill  River  Woolen  Co.  v.  Smith  299 
Millechamp  v.  Johnson  19 

Miller  v.   Auburn  &    Syracuse 


296 
469 

174 

7,  165 

314 

Company, 

32,  211,  214 


438 
301 

181 
307 
295 
273 

395 


422 
62 

422 

250 


R.  R. 

474 

V.  Bristol 

346 

V.  Brown            229, 

471, 

472 

King  V. 

135 

V.  Lapham 
V.  Laubach 

457 
242 

V.  Miller 

301 

Miller  v. 

301 

Smith  V. 

134 

Stacey  v. 
V.  Washburn 

314, 

182 
339 

Millin,  McGillivray  v. 

241 

Mills,  Burr  v. 

99, 

124 

Mills,  Pomeroy  v.  181 

Milnor,  N.  Y.  Life  Ins.  Co.  v.    269, 

325,  452 

Miner  v.  Gilmour  297,  300 

Thompson  v.  123 

Minsterley,  Wilde  v.  46 

Mitcalf  V.  Westaway  4,  284 

Mitchell  V.  Mayor  232,  411 

Parker  v.  112,  148 

V.  Rome  195 

Mixer,  Linzee  v.  367 

Moffatt,  Gayford  v.  12,  14,  26,  267, 

320 
Moffett  V.  Brewer  429 

Moies,  Lonsdale  Co.  v.  10 

Mold  V.  Wheatcroft  471 

Monmouthshire    Canal    Co.    v. 

Harford  170,  174,  175 

Moody  V.  Steggles  78 

Moor,  Kidgill  v.  359,  444 

Moore,  Allis  v.  165 

V.  Hall  404 

Pillsbury  v.  428 

w.  Rawson   177,463,479,483 

V.  Webb  239 

Wright  V.  303,  429 

Mordant,  Westbourne  v.  427 

Morecraft,  Ingram  v.  346 

Morgan,  Davis  v.  96,  467 

Morland,  Williams  v.  252,355,357, 

358,  424,  430 

Morley  v.  Pragnal  371,  380 

Morrill  v.  Hurley  241 

Morris,  Bickett  v.    57,  61,  358,  424, 

430 
V.  Edgington  28,  97,  98,  101, 
268,  278 
French  v.  10 

Hieatt  v.  208,  228 

V.  Lessees   of  Lord 

Berkeley  397 

Smith  V.  145 

Morrison  v.  Marquardt    2,  198,  208 

Morse  v.  Copeland  4,  90,  4  72 

V.  Marshall  306 

V.  Ranno  182 

V.  Williams  166 

Morss,  Crippen  v.  93 

Morton,  Smart  v.     34,  43,  222,  294 

Moses  V.  Sanford  95 

Mosier  v.  Caldwell  65 

Mott  V.  Shoolbred         358,  444,  445 

Mounsey  v.  Ismay        2,  9,  18,  111, 

132,  138,  141,  164 


xlvi 


TABLE   OF   CASES   CITED. 


Moxhay,  Tulk  v.  81 

Mullen,  Stearns  v.  321 

V.  Strieker  197,  200,  208 

Mumford  v.  Oxford,  Worcester 
&  \Volverhampton  R. 
R.  141 

V.  Whitney  89,  473 

Mnnroe  v.  Stickney  425 

Munsell,  Edson  v.  163 

Munson  V.  Hinigerford  182 

Murchie  v.  Black  44,  228,  413,  414 
Miirgatroid  v.  Law  157,  258 

Muroratroyd  v.  Robinson       12,  161, 
239,  258 
Murphy,  Beard  v.  242 

Murray,  Billing  v.  56 

]\Iussey  V.  Union  Whai'f  450 

Myer  v.  Whitaker  299 

Myers,  Clinton  v.  65 

V.  Gemmel  197,  205 


N. 


N.   H.    &    Northampton    Co., 

Foot  V.  473 

N.  J.  R.  R.,  Atty.  Gen.  v.  368 

N.  Y.  &c.  R.  R.,  Eggleston  v.      472 

N.  Y.  Cen.  R.  R.,  Bissell  v.         182 

Mahon  v.  131 

Waffle  V.  241 

N.  Y.  Life  Ins.  Co.  v.  Milnor     269, 

325,  452 

Napier  v.  Bulwinkle  207 

Nash  V.  Peden  75 

National    Guaranteed   Manure 

Co.  V.  Donald  159,  163,  164,  451 
National  Provincial  Plate  Glass 
Ins.  Co.  V.  Prudential  Assur- 
ance Co.  482 
Neal,  Ward  v.  208,  209 
Neale  v.  Seeley  78 
Nelson,  Williams  v.  250 
Neponset    Man.    Co.,    Bolivar 

Man.  Co.  V.      115,  136,  249,  304 
Nesbitt  V.  Trumbo  271 

Nettlefold,  Selby  v.       332,  345,  449 
Nettleton  v.  Sikes  470 

Nevile,  Kinloch  v.  172 

Neville,  Rex  v.  373 

Nevins  v.  Peoria  242 

New  Albany  R.  R.  v.  Peterson  253 
New  Bedford,  Haskell  v.  438 

Newcastle,  Jackson  v.  366 


Newcomen  v.  Coulson  315,  455 

New  Haven,  Guthrie  v.  183 

V.  Sargent  10 

New  Ipswich  Woolen  Factory 

V.  Bachelder  48,  123 

New  Orleans,  Bowman  v.  242 

New  River  Co.  v.  Johnson  64,  253 
Newbury  port,  Parks  v.  241 

Newell,  Winslow  v.  99 

Newhall  v.  Ireson  301,  425,  426 

Newman,  Saunders  v.         304,  456, 

468 

Tucker  v.  360 

Newmarsh  v.  Brandling  470 

Newson,  Saunders  v,  468 

Nichol,  Atty.  Gen.  v.  383,  387, 

397 

V.  Canada  Southern  R.  R.  241 
Nicholas  v.  Chamberlain  110 

Nichols  V.  Aylor  173 

V.  Luce     269,  270,  271,  350, 

351 

Nicholson,  Constable  v.  7,  164 

Davidson  i'.  113,  165 

Nicklin  v.  Williams  416,  417,  420 
Nield  V.  London  &  North  West- 
ern R.  R.  48,  59 
Nightingale,  Parker  v.  82,  89,  367 
Noll  V.  Dubuque,  &c.  R.  R.  464 
NoUey,  Callaway  Co.  v.  461 
Noonan,  Curtis  v.  472 
North,  Bishop  v.                     128,  351 

Daniel  v.  113,  163,  165 

Westbrook  v.  130 

North  Eastern  R.  R.,  Elliot  v.     226 

V.  Elliott  39 

Northam  v.  Hurley  108,  275,  426 
Northern  Cen.  R.  R.,  Sapp  v.  163 
Northern  Trans.  Co.  v.  Chicago  34 
Northumberland,  State  v.  343 

Northwestern    R.    R.,    Chica- 
go V.  1 73 
Norton  V.  Volentine  249 
Norway  Plains  Co,  v.  Bradley    425, 

432 
Norwood,  Sanders  v.  5 

Nottingham,  Hall  v.  19 

Nowlen,  Phelps  v.  65,  253 

Noyes,  Pickering  v.  7 

V.  Stillman  429 

V.  Ward  183 

Nudd  V.  Hobbs  181 

Nuttall  V.  Bracewell  48,  53,  310 
Nye,  Ball  v.  47 


TABLE   OF   CASES   CITED. 


xlvii 


0. 

Palmer  v.  Fletcher 

94,  191, 

192, 
384 

Oakley  v.  Adamson 

96 

V.  Paul 

94, 

191 

V.  Stanley 

99 

V.  Wetmore 

197 

Obee,  Lawrence  v. 

463 

Panton  v.  Holland 

411 

Oecum  Man.    Co.   v. 

Sprague 

Paris^h  Clerks'  Co.,  Plasterers' 

Man.  Co. 

472 

Co.  V. 

179, 

215 

Odin,  Story  v. 

192,  205, 

407 

Parish  of  the  Advent,  Harper  v. 

134 

Odiorne  v.  Lyford 

302 

Parish  of  Trumpington,  Roads 

V.    5 

Ody,  Wells  V. 

80, 

397 

Parke,  Warburton  v. 

174 

Ogburn  V.  Connor 

242 

Parker  v.  Bennett 

126 

Oijden  V.  Grove 

271 

V.  Boston  &  Maine  R.  R. 

253 

O'Hara,  Pope  v. 

450 

Clark  V. 

94 

Old  Colony  R.  R.,  Her 

inessey  u. 

265 

V.  Foote 

135,  203, 

209 

Oldfield's  case 

348 

V.  Framingham 

266, 

359 

Oldroyd,  Hale  v. 

462,  468, 

489 

V.  Griswold 

301 

0' Linda  v.  Lothrop 

95, 

266 

V.  Mitchell 

112, 

148 

Oliver  V.  Hook 

11,  101 

122 

V.  Nightingale 

82,  89, 

367 

V.  Pitman 

270, 

271 

Press  V. 

121 

Olmsted  v.  Loomis 

311 

Ritger  v. 

2, 

488 

Olney,  Whitney  v. 

121 

Rodgers  v. 

266 

O'Neil  V.  Harkins 

411 

V.  Smith 

95,  266, 

397 

Onley  v.  Gardiner 

112,  153, 

173, 

Parkins  v.  Dunham 

464 

174 

176 

Parks  V.  Bishop 

316 

Onslow,  Bedingfield  v 

359 

V.  New  bury  port 

241 

Onthank   v.   Lake   Shore,   &c. 

W^hitehead  v. 

248,  275, 

426 

R.  R. 

276 

Parshley,  Woodbury  i 

. 

472 

Ormond,  Allen  v. 

76, 

445 

Parsons  v.  Johnson 

101, 

127 

O'Reiley  v.  McChesney 

239 

Snow  V. 

239 

O'Rorke  v.  Smith 

127 

270 

Partridge  v.  Gilbert 

228 

295 

Orr,  Wickersham  v. 

474 

V.  Scott         39, 

42,  140, 

165, 

Osborn  v.  Hart 

271 

229 

230 

V.  Wise 

319 

348 

Pash,  Binckes  v. 

390 

Osburn,  Witham  v. 

272 

Pastorius  v.  Fisher 

425 

Overdeer  v.  Updegraff 

124 

Patrick,  Mebane  v. 

165 

Owen,  Embrey  v.       53,  56,  69, 

275, 

Patterson,  Trask  v. 

271 

296 

300,  358 

426 

Pattisson  v.  Gilford 

365 

V.  Field        10, 

367,  368, 

464, 

Paul,  Palmer  v. 

94, 

191 

465 

489 

Pawson,  Senior  v. 

366 

387 

Smith  V.         > 

82 

216 

Payne,  Dovaston  v. 

8 

Oxford,  Worcester  & 

Wolver- 

V.  Sheddon 

177 

hampton  R.  R.,  Mumford  v. 

141 

Thayer  v. 

122 

Oxley,  Kay  v. 

104 

Peake,  Hunt  v. 
Pearee,  Desloge  v. 

34 
472 

V.  McClenagha 

n 

460 

P. 

Pearsall,  Post  i'.        15 
Pearson,  Cheever  v. 

,  69,  114, 

186 
473 

Pagham  Commissioners  Rex  v. 

59, 

Kelk  V. 

287, 

289 

432 

V.  Spencer 

117,  131, 

269, 

Paige  V.  Weathersfield 

183 

349,  350, 

476 

Paine  v.  Boston 

207 

Pease,  Ashley  v. 

312 

V.  Woods 

299 

Peck,  Butler  i). 

242 

Painter,  Darlington  v. 

302 

V.  Conway 

82,  99 

367 

Palk  V.  Skinner 

154 

Walkins  v. 

134 

xlviii 


TABLE   OF   CASES   CITED. 


Peden,  Nash  v.  75 

Peers  v.  Lucy  7 

Pennsylvania  R.  R.  v.  Jones        124 
Peoria,  Nevins  v.  242 

Percival,  Jones  v.  72,  185,  277,  285, 
347,  351,  444 
Perkins  v.  Dow  301 

Perley  v.  Chandler  73,  130 

V.  Hilton  250 

V.  Langley  15,  184 

Pernam  v.  Wead  270,  271 

Perrin  v.  Garfield  465 

Perrine  v.  Farr  273 

Perry,  Beadel  v.  397,  401 

Petch,  Metro.  Asso.  v.  359,  395 

Peteler,  Gilbert  y.  89,  367 

Peters,  Marshall  v.  299 

Peterson,  New  Albany  R.  R.  v.    253 
Pettibone  v.  Smith  56 

Pettigrew  v.  Evansville  242 

Pettingill  v.  Porter  270 

Pewterers'  Co.,  Mayor  of  Lon- 
don V.  215 
Peyton   v.  Mayor  &  Common- 
alty of  London  44 
Pfaff,  Bloch  V.                                 251 
Phelps  V.  Nowlen                     65,  253 
Tourtellot  u.                         311 
Pheysey  v.  Vicary        131,  449,  488 
Phila.  Ex.  Co.,  Gowen  v.     134,  182 
Phillips,  Frewen  v.         14,  32,  174, 
211,  214 
V.  Bordman                          229 
V.  Phillips                             123 
PhiUips  V.                           123 
Phipps  V.  Johnson                          333 
Pickering  v.  Noyes  7 
Pico  V.  Coliraas                               285 
Pierce  v.  Cloud                               135 
Collier  v.                     122,  200 
V.  Selleck                             452 
Walker  v.         '                   444 
Pierre  v.  Fernald          135,  206,  220 
Pierson  v.  Glean                              429 
Piggott  V.  Stratton                           81 
Pigot,  Sury  v.                  56,  448,  45  7 
Pillsbury  v.  Moore                          428 
Pincke,  Shove  v.                            108 
Pingree  v.  McDuflie              122,  2G9 
Pinnington  v.  Galland    98,  267,  350 
Piper,  Chestnut  Hill,  &c.  Co.  v.  134 
Pitkin  V.  Long  Island  R.  R.          89 
Pitman,  Oliver  v.                   270,  271 
V.  Poor                                  472 


Pitt,  Large  v.  13,  93,  96,  145 

Pittenger,  Robeson  v.         193,  208, 

408 
Pitts  V.  Lancaster  Mills  301 

Plant,  James  v.        12, 102, 104,  459, 

476 
Plasterers'  Co.  v.  Parish  Clerks' 

Co.  179,  215 

Piatt,  Farnum  v.  345 

Leroy  v.  124 

Plimpton  V.  Converse  124,  457 

Plumlfcigh  V.  Dawson  425 

Plummer  v.  Webb  475 

Plympton  v.  Converse  134 

Pocasset  Man.  Co.,  Cotton  v.     302, 

325 

Polden  V.  Bastard  118,  131 

Pollard  V.  Barnes  174,  177 

Pomeroy  v.  Mills  181 

Pomfret  w.  Ricroft  17,  110,  285, 

346,  444 

Pond,  Richardson  v.       78,  207,  330 

Poole  V.  Huskinson  181 

Thomas  v.  266 

Poor,  Pitman  v.  472 

Pope,  Bury  v.  205 

V.  Devereux  490 

V.  O'Hara  450 

Popplewell  V.  Hodkinson        39,  94, 

22  7 

Poritt,  Holker  v.  49,  55 

Porter,  Deshon  u.  312 

V.  Durham  242 

Finlinson  v.        109,  110,  276 

Pettingill  v.  270 

Smith  V.  321 

Taylor  v.  271 

Portland  Man.  Co.,  Webb  v.       366 

Portmore  v.  Bunn  93 

Ports.,  Gt.  Falls  &  Conway  R. 

R.,  Blaisdell  v.  474 

Post  V.  Pearsall        15,  69,  114,  186 
Potter,   Stockport  AV^ater works 

Co.  V.       4,  53,  249,  254,  310,  436 
Pottmeyer,  State  v.  299 

Potts  V.  Smith  32,  202,  216 

Powell  V.  Bagg  173 

Powell  Duffryn  Steam  Coal  Co. 

V.  Taff  Vale  R.  R.  128 

Powell  V.  Sims  195,  208 

Pragnal,  Morley  v.  371,  380 

Pratt,   First    Parish   in    Med- 

ford  V.  134 

V.  Lamson  311 


TABLE   OF   CASES   CITED. 


xlix 


Pratt,  Reg.  v.  181 

V.  Sanirer  351 

Preble  u.  Reed  124 

Prentice,  Collins  v.      122,  269,  271 

V.  Geiger  239,  258,  309 

Prentiss  v.  Larnard  366 

Prescott  V.  White         239,  285,  429 

V.  Williams    56,  239,  285,  429 

Press  V.  Parker  121 

Price,  Lewis  v.  205 

Primrose,  Clawson  v.  208,  407 

Prince  v.  Case  473 

Pr ingle  v.  AVernham  397 

Prior,  Rose  well  v.  360,  397 

Pritchard,  Durell  v.-  366 

Private  Road,  Killbuck  r.  273 

Proctor  I'.  Andover  272 

V.  Hodgson    28,  268,  269,  486 

V.  Lewiston  182 

Proprietors  of  Locks  &  Canals, 

Melvin  v.  174 

Proud  V.  Bates  222 

Hollis  V.  324 

Wilkinson  v.  5 

Prov.  Aqueduct  Co.,  Dexter  v.  253 
Prov.  Gas  Co.  v.  Thurber  79,  131 
Prov.  Tool  Co.  V.  Corliss  Steam 

Engine  Co.  127 

Prudential  Assurance  Co.,  Nat. 

Provincial  Plate  Ins.  Co.  v.      482 
Purcell,  Bridges  v.  473 

Purssell,  Fox  v.  384 

Putnam  v.  Bowker  134 

Pyer  v.  Carter  115,  179,  199 


Q. 


Queen's  College,  Oxford,  War- 
rick V.  180 
Quimby,  Vt.  Cen.  R.  R.  v.  130 


R. 


Race,  Campbell  v.  343 

V.  Ward  7,  64,  160 

Radclill  V.  Mayor  of  Brooklyn       34, 

411 
Radcliffe,  Rochdale  Canal  Co.  u.  159 
Raraeshur  v.  Koonj  69 

Rameshur  Pershad  Narain 
Singh  V.  Koonj  Behari  Pat- 
tuk  262 

d 


Ramsbotham,  Broadbent  v.    55,  241 

Rand,  Johnson  v.  304,  311 

Randall,  Brice  v.  185 

V.  McLaughlin  125 

V.  Sanderson  78,  207 

Warshauer  v.  464 

Rangeley  v.  Midland  R.  R.  Co.      8, 

73,  87 
Rankin,  Charless  v.  45,  411 

Ranno,  Morse  v.  182 

Raritan,  &c.  Co.,  Veghte  v.  465,  472 
Rawson  v.  Bell  471 

Moore  y.     177,463,479,483 
Rawstron  v.  Taylor  51,  55,  241 

Ray  V.  Fletcher  306 

V.  Lynes  210 

V.  Sweeny  208 

Raymond,  Fitzhugh  v,  2  76 

Hodges  V.  239,  429 

Re  Pennv  and  the  South  East- 
ern R.'R.  Co.  33,  84 
Read,  Buell  v.  302 
V.  Leeds                          5,  130 
Roberts  v.                   356,  420 
Redington,  Carleton  v.         429,  4  74 
Reed,  Battishill  v.         173,  176,  359 
Bell  V.  35 
Preble  v.                             124 
Rees  V.  Chicago                             182 
Reeves,  White  v.                           450 
Ref.  Church  v.  Schoolcraft            99 
Reg.  V.  Aire  &  Calder  Nav.  Co.    422 
V.  Inhabitants  of   Brad- 
field  76 
V.  Inhab.  of  Greenhow      341 
V.  Inhab.  of  Hornsea         341 
V.  Metro.  Board  of  Works    62 
V.  Pratt                                 181 
V.  United  Kingdom  Elec- 
tric Tel.  Co.                    332 
Regina  v.  Chorley      25,  75,  76,  17  7, 
461,465,485 
Reid  V.  Gifford                       366,  382 
Reignolds  v.  Edwards           178,  468 
Reimer  v.  Stuber                    114,  165 
Rennyson  v.  Rozell                        408 
Renshaw  v.  Bean                   310,  388 
Rerick  v.  Kern                                474 
Rex  V.  Bognor  Commissioners        59 
V.  Bristol  Dock  Co.            433 
V.  Cross                                373 
V.  Inhabitants  of  Mellor      26 
V.  JoUifEe                  5,  73,  280 
V.  Neville                           373 


1 


TABLE   OF   CASES   CITED. 


Rex  V.  Pagham  Commissioners    59, 

432 

V.  Kosewull  406 

V.  Tippett  455 

Trafford  v.  54,  59 

V.  Wharton  429 

Rexford  v.  Marquis  464 

Reynolds,  Guest  v.  190,  209 

V.  Reynolds  130,  273 

Reynolds  v.  130,  273 

Rhea  v.  Forsyth  366 

Rhoads,  Worrall  v.  166 

Rhodes,  Barlow  t-.     8,  98,  100,  103, 

476 

V.  Whitehead  297 

Rich,  Blake  v.  130 

Duinneen  v.  88,  472 

Richard,  Barrow  v.  367 

Richards,  Chasemore  v.    54,  62,  64, 

65,  68,  135,  242,  248,  253 

Colburn  w.  301,429 

Compton  V.  192 

V.  Fry  147 

V.  Harper  225 

V.  Rose  228 

Richardson,  Barker  v.  163 

V.  Bigelow  312,  359,  444,  445 

Hayes  v.  473 

Knowles  v.  80 

V.  Pond  78,  207,  330 

V.  Vt.  Cen.  R.  R.        34,  411 

Richart  v.  Scott  45,  233,  411 

Richmond  Man.  Co.  v.  Atlantic 

De  Laine  Co.  368 

Richter,  Eulrich  v.  243 

Ricker,  Heath  v.  79 

V.  Kelly  472 

Ricroft,  Pomfret  v.        17,  110,  285, 

346,  444 

Riddle  v.  Littlefield  121 

Martin  v.  2 

Ritger  v.  Parker  2,  488 

Rivers,  Lawton  v.  268 

Riviere  v.  Bower  83,  408 

Roads  V.  Parish  of  Trumpington       5 

Roath  V.  Driscoll  65,  253 

Robbins  v.  Borman  6,  130 

V.  Jones  182 

Roberts,  Brumfitt  v.  8 

V,  Clarke  174 

Colchester  v.  324,  328 

V.  Davey  109 

V.  Haines  224,  294 

V.  Karr  95,  269 


Roberts  v.  Macord 

188, 

216 

V.  Read 

356, 

420 

V.  Roberts 

346 

Roberts  v. 

346 

Robertson,  Dugdale  v. 

223 

Robeson  v.  Pittenger    193,  208,  408 

Robins,  Brown  v.   38,  409,  410,  485 

Ward  V.  147 

Robinson,  Chauntler  v.  17 

V.  Grave  191 

Hazard  v.  457 

Heath  v.  457 

V.  Lord  Byron  430 

May  field  i'.  89,  284 

Murgatroyd  v.     12,  161,  239, 

258 

V.  Swope  273 

Robson  V.  Whittingham  397 

Rochdale  Canal  Co.  v.  King  91,*471 

V.  RadcHffe  159 

Rodgers  v.  Parker  266 

Rogers  v.  Bancroft  311 

Howard  v.  266 

V.  Sawin  207 

V.  Sinsheimer  228,  229 

V.  Taylor       26,  42,  185,  229, 

410 

Rolle  V.  Whyte  25 

Rome,  Mitchell  v.  195 

Ropes,  Sharp  v.  367 

Rose,  Cousens  v.  314 

V.  Groves  446 

Richards  v.  228 

Rosewell  v.  Prior  360,  397 

Rex  V.  406 

Rowbotham  v.  Wilson      26,  34,  44, 

95,  129,  224,  293,  294 

Rowell,  Union  House  v.  79 

Royalton,  Blodgett  v.  183 

Royce  v.  Guggenheim  200 

Rozell,  Rennyson  v.  408 

Rugby  Charity  i!.  Merryweather  181 

Ruggles  V.  Lesure  4,  473 

Runnels,  BuUen  v.  311 

Russ  V.  Dyer  126 

Smith  V.  307 

Russell,  Cawkwell  v.     282,  310,  362 

V.  Harford  12 

V.  Jackson  270,  331 

V.  Scott  303 

Rust  V.  Low  79 

Rutland  v.  Keep  174 

Ryckman  v.  GilUs  45,  222,  294 

Ryding,  Harris  v.      34,  43,  222,  294 


TABLE   OF   CASES   CITED. 


li 


Sabine  v.  Johnson  307 

Sabron,  Barnes  v.  241 

Sackett,  Bellows  u.  242,251 

Sadler  v.  Langham  271 

Safford,  Williams  v.  343 

Salem  &  Danvers  Aqueduct  Co., 

Fay  V.  299 

Salisbury  v.  Andrews  330,  335 

Salisbury  Man.  Co.,  Barrett  v.  66 
Salisbury  Man.  Co.,  Bassett  v.  248 
Salters'  Co.  y.  Jay  211 

Sampson  v.  Hoddinott    24,  51,  157, 
252,  275,  300,  358,  424 
San  Francisco  v.  Calderwood      182 
Sanders  v.  Norwood  5 

Sanderson,  Randall  v.  78,  207 

Sandford,  Dyer  v.  4,  472,  489 

Gormley  v.  242 

Moses  V.  95 

Sanger,  Pratt  i\  351 

Sapp  V.  Northern  Cen.  R.  R.        163 
•Sargent  v.  Ballard         132,  136,  174 
New  Haven  v.  10 

Saunders  v.  Newman    304,  456,  468 
Wood  V.       98,  276,  278,  281 
Savage,  Simpson  v.  359,  381 

Savill,  Alder  v.  305 

Sawin,  Rogers  v.  207 

Saxby  v.  Manchester  &  Shef- 
field R.  R.,  360,  427 
Saxon,  Wilson  v.  181 
Sayles,  Hill  t-.  367 
Scheuley  v.  Commonwealth  359 
Schofield,  Hopwood  v.  359 
Schoolcraft,  Ref.  Church  v.  99 
Schweder,  Leech  v.       23,  202,  400, 

402 
Schwoerer  v,  Boylston  Market 

Asso.  36  7 

Scott  V.  Beutel  1 1 

Partridge  v.    39,  42, 140,  165, 

229,  230 

Richart  u.  45,  233,  411 

Russell  V.  303 

State  V.  181 

Screven  v.  Gregorie  452 

Seaman  v.  Vawdrey  462 

Sear,  Davies  v.  269 

Seavey  v.  Jones  99,  100 

Seddon,  Aspden  v.      45,  222,   228, 

294 
Seeley  v.  Bishop  122 


Seeley,  Holmes  v.  185^  269,  343,  346, 
350,  452 
Neale  v.  78 

Woodward  v.  472 

Seibent  y.  Levan  123 

Seidensparger  y.  Spear  473 

Selby  V.  Nettlefold       332,  345,  449 
Selden,  Cromwell  v.  311 

V.  Dela.    &  Hud.   Canal 
Co.  474 

Selfe,  Walter  r.      30,371,378,380 
Selleck,  Pierce  v.  452 

Seller,  Holms  v.  96,  108 

Semple  v.  London  &  Birming- 
ham R.  R.  75 
Senhouse  v.  Christian  326,  351 
Senior  v.  Pawson  366,  387 
Seymour  v.  Carter  473 
Shadwell  v.  Hutchinson  359,  360 
Shafto,  Taylor  v.  223 
Sharp,  Brakely  v.  127,  269 
V.  Ropes  367 
Sharpe  v.  Hancock  129 
Shaw,  Bealey  v.  24,  56,  57,  249, 
275,  279,  302 
Sheard,  Drewettv.  53,  463,  465 
Shears  v.  Wood  430 
Shed  V.  Leslie  312 
Sheddon,  Payne  v.  178 
Sheffield  Gas  Consumers'  Co., 

Atty,  Gen.  v.  435 

Shelby  v.  State  490 

Shepherd,  Lade  v.  182 

Sherwood  o.  Burr  250 

V.  Vliet  250 

Sliields  V.  Arndt  243,  36  7 

Shipman  v.  Beers  197 

Shippam,  Hewlins  v.  1,  3,  89 

Shoolbred,  Mott  v.       358,  444,  445 

Short,  Siddons  v.  94,  223 

V.  Woodward  306 

Shove  V.  Pincke  108 

Shreve,  Hulme  v.  425 

Shrewsbury  &  Hereford   R.  R., 

Mason  u.    16,58,61,88,142,167, 

251,  449,  468 

Shrieve  v.  Stokes  45,  411 

Shugar,  Grand  Junction  Canal 

Co.  V.  40,  55,  67 

Shults,  Hynds  v.  307 

Marclyu.  307 

Shuttleworth  v.  Le  Fleming  9 

Sibley  u.  Ellis  136 

Siddons  v.  Short  94,  223 


Hi 


TABLE   OF   CASKS   CITED. 


Sikes,  Nettleton  v. 

470 

Silverstoiie,  Chase  v. 

65, 

253 

Simmons,  Corp.  of  Yarmouth  v. 

450 

V.  Sines 

269 

Simonds,  Giles  v. 

470, 

474 

Simper  t'.  Foley     215 

397,  459, 

476 

Simpson  v.  Savage 

359 

381 

Sims,  Coles  v. 

81 

Powell  V. 

195, 

208 

Sines,  Simmons  v. 

269 

Singers,  Stokoe  v. 

177, 

478 

Sinsheimer,  Rogers  v. 

228, 

229 

Sipe,  Haverstiek  v. 

207 

Sipperly,  Dennis  v. 

443 

Skinner,  Palk  v. 

154 

Skull  V.  Glenister  98, 

284,  321, 

324 

Slackman  v.  West 

164 

Sloan  V.  Holliday 

316 

Smart  v.  Jones 

90, 

361 

V.  Morton       34,  43,  222, 

294 

Smeaton,  Weller  v. 

382 

Smith,  Ackroyd  v.  8, 

10,  15,  22 

,  73, 
321 

r.  Adams 

253 

i\  Barnes 

490 

Bates  V. 

241 

Brigham  v. 

122,  269, 

270 

V.  Darby      45, 

222    223 

294 

Fentiman  v. 

'  3,  89,  90 

Harris  v. 

101, 

122 

Hervey  v. 

78,  361, 

471 

V.  Kinard 

270 

r.  Lee 

351, 

490 

V.  Lock 

95 

Lovell  ('. 

467,  468, 

491 

Lowell  V.    461 

,  468,  489, 

491 

Manning  v. 

124 

457 

Mill  River  Woolen  Co.  v 

299 

V.  Miller 

134 

V.  Morris 

145 

O'Rorke  v. 

127, 

270 

V.  Owen 

82, 

216 

Parker  v. 

95,  266 

397 

Pettibone  v. 

56 

V.  Porter 

321 

Potts  V. 

32,  202 

216 

V.  Russ 

307 

V.  Smith 

78 

S mi  til  V. 

78 

V.  Thackerah  v.         355, 

410, 

411, 

485 

Tillotson 

425 

V.  While 

207 

Smiths,  Campbell  v. 

250 

Smyles  v.  Hastings        96,  266,  269, 
270,  350,  464 
Snow  V.  Parsons  239 

Snowden  v.  Wilas  474 

Snyder  v.  War  ford  269 

Solomon  v.  Vintners'  Co.     231,  236 
Sorrell,  Thomas  v.  4 

Soule,  Gentleman  v,  182 

South   Metropolitan    Cemetery 

Co.  V.  Eden  321,  454 

South  Reading,  Hartshorn  v.       368 

Spaulding  v.  Abbott  99,  100 

Spear,  Seiden>parger  v.  473 

Speer,  Bowlsby  v.  241 

Spencer,  Elmhirst  v.  366,  426 

Pearson    v.       117,  131,  269, 

349,  350,  476 

Spensley  v.  Valentine  11 

Spokestield,  Hayford  v.        468,  489 

Spooner  v.  Day  157 

Foster  v.  92 

Turner  v.  33,  84,  291 

Sprague  Man.  Co.,  Occum  Man. 

Co.  v.  472' 

Spring,  Staple  v.  428 

Springfield  v.  Harris  301 

Springett,  Bishop  v.  160 

Sprot,  Caledonia  R.  R.,  v.  94 

St.  Charles,  Becker  v.  182 

St.    George's  Vestry,   Hamil- 
ton V.  346 
St.  Helen's  Smelting  Co.  v.  Tip- 
ping    31,  188,  .371,  373,  379,  381 
St.  Mary,  Newington,  v.  Jacobs   73, 

181 
St.   Pancras   Guardians,    Ard- 

ley  V.  77,  96,  314 

St.  Paul,  Baker  v.  182 

Wilder  v.  182,  263 

St.  Paul  Ins.  Co.,  Dawson  v.      339, 

368 
Stacey,  Back  v.  397 

Jackson  v.  77,  314,  317 

V.  Miller  182 

Stafford  v.  Coyney  181,  183 

Stafibrdshire  &  Worcestershire 
Canal  Co.  v.  Birmingham 
Canal  Co.  159 

Staffordshire  Potteries  Water- 
works Co.,  Clowes  V.        364,  436 
Stallman,  Kay  v.  408 

Standiford  v.  Goudy  122 

Stanley,  Oakley  v,  99 

Staple  V.  Spring  428 


TABLE   OF   CASES   CITED. 


liii 


Staples  V.  Heydon  145 

State  V.  Alstead  490 

V.  Atherton  182 

V.  Northumberland  343 

V.  Pottnieyer  299 

Scott  t'.  181 

Shelby  v.  490 

V.  Trask  182 

Stearns,  Cook  v.  473 

V.  Mullen  321 

Steggles,  Moody  v.  78 

Stein  V.  Burden      56,  297,  302,  366 

Cherry  v.  207 

V.  Hauck  208,  220 

Lewis  V.  436 

Stephens,  Bailey  V.  112 

Sterrett,  Hoy  v.  207 

Stetson  V.  Curtis  337 

V.  Dow  96,  266,  336 

Stevens,  Arnold  v.  464,  489 

Bailey  v.  7,  15 

V.  Dennett  3,  169 

V.  Stevens  367,  473 

Stevens  v.  36  7,  473 

Webster  v.  228,  229 

Stevenson  v.  Wallace  2,  34 

Stewart  v.  Hartman  272 

Stewartstown,  Abbott  v.  452,  487 

Stickney,  Munroe  v.  425 

Stiles  V.  Hooker  250,  307 

Stillman',  Noyes  v.  429 

V.  Wliite  Rock  Co.  173 

Stillwell,  Horner  v.  307 

Stocker,  Ivimey  v.  20,  88 

Stockport    Waterworks    Co.    v. 

Potter      4,  53,  249,  254,  310,  436 
Stoddard.  West  Roxbury  v.         299 


Stokes,  Shrieve 
Stokoe  V.  Sinsrers 


45,  411 
177,  373,  478, 
489 
381 
192,  205,  407 


Storr,  Benjamin  v. 

Story  V.  Odin 

Stourbridoe  Canal  Co.  v.  Earl 

of  Dudley  226,  422 

Stowell  V.  Lincoln  301,  425 

Tobin  V.  156 

Stowmarket  Co.,  Lingwood  v.      436 


Straight  v.  Burn 
Stratton,  Pigoett  i-. 
Strieker,  Mullen  v. 
Strong  V.  Benedict 
Stroyan  v.  Knowles 
Stuber,  Reimer  v. 
Sturdy,  Tyler  v. 


387,  394 

81 

197,  200,  208 

312 

38,  410,  485 

144,  165 

77,  181 


Sturges  V.  Bridgman  135,  141 

Stuyvesant,  Undei  wood  v.  26 

V.  Woodruff  125 

Suffield  V.  Brown  118,  267 

Suffolk  Man.  Co.,  Bowers  v.        182 
Sullivan  R.  R.,  Chapin  v.  130 

Summers,  Gerenger  v.  303 

Sumner,  Crawshaw  v.  228 

Sury  V.  Pigot  56,  448,  457 

Sutcliff,  Wood  V.  257,  258,  364,  368, 

437 
Sutcliffe  V.  Booth  48 

Sutton  V.  Lord  Montfort  163 

Swaine    v.    Great    Northern 

R.  R.  381 

Swansea   Waterworks    Co. 

Eaton  V. 


Swartz  V.  Swartz 
Swartz,  Swartz  v. 
Swazy  V.  Brooks 
Sweeney,  Ray  v. 
Swett  V.  Cutts 
Swift,  Hall  V. 


173 
474 
474 

100 

208 

66,  241,  242 

178,  456,  457 


Swindon  Waterworks  Co.  Limited, 
Wilts  &  Berks  Canal  Co.  v.       16, 
56,  296,  358 
Swope,  Robinson  v.  273 

Swvenborou|ih  v.  Coventry  192 

Syracuse,  Bastable  v.  242 


T. 


Tabor.  Hudson  v.  59 

Taff  Vale  R.  R.,  Powell  Duff- 

ryn  Steam  Coal  Co.  v,  128 

Talbot,  Bakeman  v.  331,  346 

Talbott  V.  Grace  186 

Tallmadge  v.  East  River  Bank    182, 

367 

Tapling  v.  Jones    32,  144,  158,  190, 

212,  290,  310,  481,  482 

Jones  V.  390 

Taunton,  Tobey  v.  266,  336 

Taylor,  Baxter  v.  160,  360 

V.  Bennett  432 

V.  Boston  Water  Power 

Co.  181 

Commissioners  v.  461 

Farnsworth  v.  266,  336 

V.  Fickas  241 

Haines  v.  365 

V.  Hampton  450 

Home  V.  449 


Hv 


TABLE   OF   CASES    CITED. 


Taylor  r.  Porter  271 

Rawstron  v.  51,  55,  241 

Rogers  v.     26,  42,  185,  229, 

410 

V.  Shafto  223 

V.  Townsend  270 

V.  Welch  66 

V.  Whitehead  17,  342,  343, 

346,  444 

Team,  Bowen  v.  2 

Tenant  v.  Goldwin         47,  198,  258 

Tennant,  Bankart  v.  91,  471 

City  of  London  Brewery 

Co.  u.  288,366,370,387,401 

Tenni?on,  Dickey  v.  272 

Terrv,  Howe  Scale  Co.  v.  429 

Thackrah,  Clay  v.  172,  174 

Thackerah,  Smith  v.     355,  410,  411, 

485 

Thayer,  Cowell  v.  250,  303,  306,  307 

V.  Payne  122 

Theed  v.  Debenham  401 

Thomas  v.  Bertram  269 

V.  Brackney  309 

Flighty.      29,  141,  143,  178, 

189,  215 

V.  Marshfield  134 

V.  Poole  266 

V.  Sorrell  4 

V.  Thomas  456,  459,  476 

Thomas  i\  456,  459,  476 

Thompson,  Chandler  v.   33,  84,  203, 

481 
Curtice  v.  307,  428 

V.  Miner  123 

Turner  v.  195 

V.  Uglow  346 

Whalley  v.    98,  100,  131,  476 
Thomson,  McCready  v.  207 

V.  Waterlow  104 

Thornborough,  Hide  v.         42,  140, 

229 
Thoroughgood,  Johnson  v.  78 

Thorpe' f.  Brumfitt    15,  73,  356,  445 
Thurber  v.  Marten  301 

Prov.  Gas  Co.  v.  79,  131 

Thurston  v.  Hancock      34,  38,  411, 

485 
Tickle  V.  Brown  170 

Tiller,  Holdcn  v.  160 

Tillotson  V.  Smith  425 

Wads  worth  v.  301 

Tindall,  Hutto  v.  490 

Tinicum  Fishing  Co.  v.  Carter      11 


Tippett,  Rex  v.  455 

Tipping  V.  Eckersley  365 

St.     Helen's     Smelting 

Co.  V.       31,  188,  371,  373, 
379,  381 
Tisdale,  Gardiner  u.  181 

Tobey  v.  Taunton  266,  336 

Tobin  V.  Stowell  156 

]\Iiles  V.  384 

Tolle  V.  Correth  297,  301 

Tomlin  V.  Fuller  314 

Tomlinson,  Brownlow  v.  76 

Tourtellotv.  Phelps  311 

Tower,  Tucker  v.  131 

Towler,  Drewell  v.  78 

Town  V.  Faulkner  307 

Hubbard  v.  208 

Townend,  Wilson  v.  359,  395 

Townsend  v.  McDonald  250 

Taylor  v.  270 

Tracy  u.  Atherton       136,  165,  173, 

269,  465 

Trafford  v.  Rex  54,  59 

Trask  v.  Patterson  271 

State  V.  182 

Tredwell,  Beardmore  v.  371,  375 
Treaonnino:,  Blewett  v.  7,  113,  184 
Trimble,  Belknap  v.  249 

Trhnmer,  Lilly  white  z;.  437 

Trower,  Chadwick  v.  44 

Troy.  Estes  v.  181 

Trumbo,  Nesbitt  v.  271 

Trumbull,  Marshall  v.  94 

Truscott  V.  Merchant  Taylors' 

Co.  32,  211,  214 

Trustees  v.  Hoboken  181 

Holdane  v.  183 

V.  Lynch  99 

Trustees,  &c.  v.  Youmans  65,  248 
Trustees   of  M.   E.    Church, 

Browne  i\  460 

Tucker  v.  Newman  360 

V.  Tower  131 

Tudor,  Fifty  Associates  v.  207 

Tudor  Ice  Co.  v.  Cunningham  335 
Tufts  V.  Charlestown  95,  266 

Woodman  v.  425,  428 

Tqkey,  AVright  v.  182 

Tulk  V.  Moxhay  81 

Tunbridge    Wells   Imp.   Com., 

Goldsmid  v.      259,  308,  423,  432, 

434 
Tupper,  Hill  v.  9,  15,  21,  22 

Turner  v.  Spooner  33,  84,  291 


TABLE   OF   CASES   CITED. 


Iv 


Turner  v.  Thompson  195 

Turnley,  Bamford  v.  31,  375 
Tattle,  Goodale  v.           65,  241,  248 

Twentyman,  Bell  v.  427 

Tyler  v.  Hammond  457,  488 

V.  Sturdy  77,  181 

V.  Wilkinson  62 


u. 

Uglow,  Thompson  v.  346 

Ulleswater    Steam    Nav.    Co., 

Marshall  v.  320 

Underwood  v.  Burrows  78,  110 

V.  Carney  99,  339 

V.  Stuyvesant  265 

Union  Bank  of  London,  Herz  v.  21 7, 

219,  398 

Union  House  v.  Rowell  79 

Union  Mills  v.  Ferris  301 

Union  R.  R.,  Whitney  v.       82,  367 

Union  Sugar  Refinery,  Fox  v.    266, 

336,  339 

Union  Wharf,  Mussey  v.  450 

United  Kingdom  Electric  Tel. 

Co.,  Reg.  V.  332 

United  Land  Co.  v.  Great  East- 
ern R.  R.     129,276,281,314,315, 
338,  453,  455 
United  States  v.  Appleton  121,  193, 

208 
Updegraff,  Overdeeri;.  124 

Upham,  Bemis  v.  368 

Upton,  Commonwealth  v.      29,  373, 

381 
Darwin  v.  205 

Utica  &  Minden  Turnpike  Co., 
Hooker  v.  131 


Valentine  v.  Boston  181 

Dana  v.        30,  366,  371,  382 

Spensley  v.  11 

Van  Alstyne,  Adams  v.  79 

Van  Bergen  v.  Van  Bergen        366, 

368 
Van  Bergen  v.  366,  368 

Van  Deusen,  Comstock  v.  314 

Van  Hoesen  v.  Coventry  301 

Vawdrey,  Seaman  v.  462 

Veazie  v.  Dwinel  239,  429 


Veghte  v.Raritan,  &c.  Co.  465,  472 
Venables,  Foxall  v.  164 

Verley,  Joliet  v.  183 

Vestry  of  Bermondsey  v.  Brown  263 
Vestry  of    St.   George,  Hamil- 
ton V.  285,  346 
Vestry  of  St.  Mary,    Newing- 

ton,  V.  Jacobs  6,  73,  280 

Viall  V.  Carpenter  270,  452,  487 
Vicary,  Pheysey  v.  131,  449,  488 
Village  of  Delhi  v.  Youmans  253 
Vincent,  Borden  v.  136,  250 

Commonwealth  v.  299 

Vintners'  Co..  Solomon  v.  231,  236 
Virginia   &    Gold    Hill   Water 

Co.,  Cole  Silver  Mining  Co.  v.  248 
Vliet  V.  Sherwood  250 

Volentine,  Norton  v.  249 

Vooght  V.  Winch  250 

Voorhees  v.  Burchard,  99,  121 

Vose,  Hart  v.  250 

Vt.  Cen.  R.  R.,  Quimby  v.  130 

Richardson  v.  34,  411 


w. 

Wadsworth  v.  Tillotson  301 

Waffle  V.  N.  Y.  Cent.  R.  R.         241 
Waggoner  ?'.  Jermaine  428 

Wagner  i;.  Hanna  11 

Jones  V.  34,  222 

V.  Long  Island  R.  R.  241,  243 
Wait,  McGregor  I'.  114 

Waite,  Kent  y.  99,  174,  184 

Wakefield,  Bachelder  v.  134 

V.  Duke  of  Buccleuch         36, 

185,  224,  294 

Wakeley  V.  Davidson  311 

Waldron,  Hayes  v.  239 

Walker,  Adams  v.  242 

Bright  I?.      11,  114,  151,  154, 

168,  169,  170,  173,  175, 

176,  458 

Durham   &    Sunderland 
R.  R.  V.  109 

Gladfelter  v.  309 

Jennison  w.   72,276,277,312, 
351,  464,  465,  4  89 

Lamb  v.  419 

V.  Pierce  444 

Walkins  v.  Peck  134 

Wallace  v.  Fletcher  136,  165 

Stevenson  v.  2,  34 


Ivi 


TABLE   OF   CASES   CITED. 


Wallis  r.  Harrison  471,  475 

Hawkins  v.  78 

Walter  i'.  Selfe        30,  371,  378,  380 

Walters,  Harvey  i'.  78,  456 

AVarVjurton  v.  Parke  174 

Ward,  Berridge  v.  320 

Lawton  v,  324 

V.  Neal  208,  209 

Noyesr.  183 

Race  V.  7,  64,  160 

V.  Robins  147 

V.  AVard  462,  489 

Ward  V.  462,  489 

V.  AVarren  166 

AA''ardle  v.  Brocklehurst  104 

AVare,  Cleveland  v.  166 

AVarford,  Snyder  v.  269 

Warner,  Holback  v.  145 

V.  McBryde  199 

AA^arren  v.  Blake  126,  457 

V.  Bunnell  273 

Hubbell  V.  82,  367 

AA'ard  v.  166 

Warrick  v.    Queen's    College, 

Oxford  180 

Warshauer  v.  Randall  464 

AVarwick,  Harbidge  v.         174,  176, 
214,  215,  216 
Wasdale,  Manning  v.  7 

AYashburn,  Miller  v.  314,  339 

AVashburn  &  Moen  Man.  Co.  v. 

AA''orcester  438 

Waterlow,  Thomson  v.  104 

AA'aters  v.  Lilley  7,  1 86 

AA'atkins,  INIellor  v.  469 

AA'atson  V.  Bioren  339 

Horner  v.  34,  222 

Watts  V.  Kelson     27,  104,  118,  268, 

314,  456 

•Waud,  Woodu.     30,51,56,67,69, 

167,  242,  247,  248,  254,  258, 

262,  300,  302,435,  440,  449 

Waugli  V.  Leech  182 

AVay,  Clark  v.  89 

AVead,  Pernam  v.  270,  271 

AVeate,  Beeston  v.  243,  249 

AVeathersfield,  Paige  v.  183 

AVebb  V.  Bird       135,  138,  141,  162, 

187,  369 

Moore  v.  239 

Plummer  v.  475 

V.  Portland  Man.  Co.         366 

AVebster  v.  Stevens  228,  229 

AVeekly,  Abbott  v.  19 


Weekly  v.  AVildman  8 

AA''elch  V.  AVilcox  335 

Taylor  v.  66 

Weller  v.  Smeatoa  382 

Wells,  Drake  v.  474,  475 

V.  Ody  80,  397 

Wemple,  Crounse  v.  134 

AA^entworth,  Dana  u.  367 

Hancock  ik  450 

AVernhani,  Pringle  v.  397 

AA^est,  Slackman  v.  164 

AA^est  Roxbury  v.  Stoddard  299 

AVestaway,  Mitcalf  v.  4,  284 

AVestbourne  v.  Mordant  427 

AA^estbrook  r.  North  130 

AVestern  v.  McDermott  81 

AA'eston  v.  Alden  301 

AVetherell  v.  Brobst  90 

AVetmore,  Palmer  v.  197 

AVhaley  r.  Laing       4,  254,  440,  443 
AVhalley  v.  Thompson  98,  100,  131, 

476 

Wharin,  Brummell  v.  83,  408 

AVharton,  Rex  v.  429 

AVheatcroft,  Mold  v.  471 

AAlieatley  v.  Bauch         65,  207,  253 

AVheeldon  v.  Barrows  199 

V.  Burroughs  127 

V.  Burrows  121 

Wheeler,  Baker  v.  47 i 

V.  Gilsey  269 

Whetstone  v.  Bowser  248 

AA^hitaker  v.  Cawthorne  473 

Myer  v.  299 

White  V.  Bass  192,  198, 199 

V.  Bradley  195,  271 

V.  Chapin  135,  429 

V.  Clack  271 

V.  Crawford  15,  464 

Cincinnati  v.  181 

V.  Flannigain  96,  266 

Prescott  V.  239,  285,  429 

V.  Reeves  450 

Smith  V.  207 

White  Rock  Co.,  Stillman  v.        173 

AVhitehead  v.  Parks      248,  275,  426 

Rhodes  v.  297 

Taylor  v.     17,  342,  343,  346, 

444 

AVhitely,  Barber  v.  79 

AVhiting,  Melvin  y.  7,165 

AVhitney  v.  Lee  339 

Mumfordu.  89,  473 

V.  Olney  121 


TABLE   OF   CASES   CITED. 


Ivii 


Whitney  v.  Union  R. 

R. 

82, 

367 

Wbitsell,  Ferguson  v. 

4-77 

Whittier  v.  Coclieco  Man. 

Co. 

303 

Whittingham,  Robson 

V. 

397 

Whyte,  Rolle  v. 
Wickersliam  v.  Orr 

25 

474 

Wickham  v.  Hawker 

7 

Wilas,  Snowden  v. 

474 

Will)ur,  Fiske  v. 

311 

Wilcox,  Welcli  V. 

335 

Wild  V.  Deig 

272 

Wilde  V.  Minsterley 

46 

Wilder  v.  St.  Paul 

182, 

263 

Wildman,  Weekly  v. 
Wiley,  Emerson  t'. 

8 
465 

Wilkes,  Hroadbent  v. 

185 

Espley  V. 
Wilkinson  v.  Proud 

95 

265, 

269 
5 

Tyler  v. 

62 

Williams  v.  Davies 

177 

179 

Dewey  v. 

311 

Elsing  V. 

166 

Heatb  v 

239 

429 

Heigate  v. 

457 

476 

r.  James      275, 

279, 

317, 

324, 

326 

455 

Jeffries  v. 

415 

Jenks  V. 

81 

V.  Morland 

252, 

355, 

357, 

358, 

424 

429 

430 

]\Iorse  V. 

166 

V.  Nelson 

250 

Nicklin  V. 

416 

417 

420 

Prescott  V. 

56 

239 

429 

V.  Safford 

343 

Wrigbt  V.      20 

,  69, 

142, 

145, 

147,251,258 

Willis,  Carbrey  v.  78,  124,  1G6,  251, 

270 
Wilson,  Capers  v.  351 

Campbell  v.        113,  160,  169 
V.  Clialfant  4  72 

Chatfield  v.  65,  248,  253 

Cohen  v.  366 

Dennis  v.  99 

Dougal  V.  205 

Harding  v.  95,  265 

Livett  i\  114,  173 

Rowbotham  v.         26,  34,  44, 
95,  129,  224,  293,  294 
V.  Saxon  -         181 

V.  Townend  359,  395 

Young  r.  123 

Wilton  R.  R.,  Dunklee  v.  123 


Wilts  &  Berks  Canal  Nav.  Co. 
V.  Swindon  Waterworks  Co.      15, 
56,  296,  358 
Wimbledon    &    Putney    Com- 
mons Conservators  v.  Dixon   316, 
317,  319,  347,  455 
Winch,  Vooght  v.  250 

AVindsor,  Brown  v.  236 

Winfield  v.  Henning  82,  367 

Winnipiseogee   Lake    Co., 

Coe  i\  366 

V.  Young  306 

Winnisimmet  Co.,  Luther  v.        243 

Winship  v.  Hudspeth  160,  163,  168 

Winslow  17.  Newell  99 

Winter  u.  Brockwell  471 

Winthrop  v.  Fairbanks  99 

Wise,  Osborn  t-.  319,  348 

Wissler  v.  Hershey  269 

Witham  v.  Osburn  272 

Wolcott,  Ashley  v.  243 

Wolfe  V.  Frost  472 

Womersley  v.  Church  439 

Wood,  Doe  d.  Hanley  v.  5,  4  70 

Wood  V.  Edes  473 

V,  Hewett  78 

V.  Leadbitter  4,  90,  284,361, 

469 

V.  Saunders  98,  27G,"278,  281 

Shears  v.  430 

V.  Sutcliir         257,  258,  364, 

368,  437 

V.  Waud      30,  51,  56,  67,  69, 

167,  242,  247,  248,  254, 

258,  262,  300,  302,  435, 

440,  449 

Woodbury  v.  Parshley  472 

Woodgate,  Mercer  v.  314 

Woodman  v.  Tufts  425,  428 

Woodruff,  Stuyvesant  v.  127 

Woods,  Paine  v.  299 

W^oodward  v.  Seeley  472 

Short  V.  306 

Woodyer  v.  Hadden  182,  320 

Worcester,  Dickinson  v.  242 

Merrifield  v.  438 

Washburn  &  Moen  Man. 

Co.  V.  438 

Worrall  v.  Rhoads  166 

Worster,  Great  Falls  Co.  v.  429 

Worthington  v.  Gimson        104,  117 

Wright  V.  Freeman      207,  465,  491 

V.  Howard     24,  57,  249,  252, 

275,  296,  355,  357,  424 


Iviii 


TABLE   OF   CASES   CITED. 


Wright  V.  Moore  303,  429 

V.  Tukey  182 

V.  Williams  20,  69,  142, 

145,  147,  251,  258 

Wriofley,  Dewhirst  v.  115 

AVyatt  V.  Harrison    34,  42,  410,  485 

Wyeth,  Foley  v.       34,  38,  413,  485 

Wynkoop  v.  Burger  276,  346 

Wynstanley  v.  Lee  157,  160 


Yale,  Brace  v. 


249 


Yates  V.  Jack,  287,  386,  404 

Youmans,  Trustees,  &c.  v.    65,  248 
Village  of  Delhi  v.  253 

Young,  Huson  v.  331 

V.  Wilson  123 

V. 343 

Winnipiseogee     Lake 

Co.  V.  306 

,  Young  V.  343 


Zehner,  Hammond  v. 


135 


A   TREATISE 


ON 


THE  LAW  OF  EASEMENTS. 


A  TREATISE 


LAW  OF  EASEMENTS. 


CHAPTER   I. 

ON   THE   NATURE   OF   EASEMENTS. 

Sect.  1.  —  On  the  Nature  of  Easements  generally. 

The  word  "  Easement "  is  in  legal  use  frequently  misap- 
plied, for  in  addition  to  that  particular  class  of  rights   jjigugg  ^i 
to  which  it  is  properly  applicable,  it  is  often  used   the  word 
to  designate  a  variety  of  incorporeal  rights,  which, 
doubtless,  in  some  respects  resemble  easements,  but  which  are 
really  wanting  in  many  of  those  features  which  are  charac- 
teristic of  easements  properly  so  called.     It  is,  thei-efore,  the 
purpose  of  this  treatise,  in  the  first  place,  to  point  out  the 
nature  and  peculiar  qualities  of  easements  as  they  are  ex- 
plained in  various  decisions  of  the  courts  of  law. 

The  earliest  definition  of  the  word  "  Easement  "  is  to  be 
found   in  an    ancient   but  well-known  book   called    t^  a  •.• 

Uennition 

Termes  de  la  Ley,  in  which  it  is  laid  down  that  an    o^  Ease- 

.    .,  .11  ment. 

"  easement  is  a  privilege  that  one  neighbor  hath 
of  another,  by  writing  or  prescription  without  profit,  as  a  way 
or  sink  through  his  land,  or  such  like."  "  To  the  trustworthy 
character  of  this  book,  Bayley,  J.,  bears  testimony,  describing 
it,  when  quoting  the  above  definition,  as  a  book  of  great  an- 
tiquity and  accuracy  ;  *  but  it  will  be  seen,  on  consideration, 
that  the  words  of  this  definition  are  very  wide  in  their  signifi- 

"  Termes  de  la  Ley,  p.  284. 
^  Hewlins  v.  Shippam,  5  B.  &  C.  at  p.  229. 
1 


2  NATURE    OF    EASEMENTS. 

cation,  and  will  embrace  many  rights  which  are  not  easements 
in  the  strict  sense  of  the  word,  and  to  which  that  term  ought 
not  to  be  applied  according  to  modern  decisions.  Before, 
however,  proceeding  to  the  consideration  of  those  decisions, 
it  may  not  be  out  of  place  to  give  a  definition  which,  it  is 
conceived,  more  accurately  describes  easements  strictly  so 
called,  and  reduces  the  meaning  of  the  word  to  proper  limits, 
as  it  is  understood  at  the  present  day :  An  easement  is  a 
privilege  without  profit^  which  the  owner  of  one  tenement  has  a 
right  to  enjoy  in  respect  of  that  tenement  in  or  over  the  tene- 
ment of  another  person,  hy  reason  whereof  the  latter  is  obliged 
to  suffer  or  refrain  from  doing  something  on  his  own  tenement 
for  the  advantage  of  the  former} 

Of  easements,  according  to  this  definition,  there  are  two 
Natural  kinds,  similar  to  one  another  in  many  respects,  but 
Rights.  diflPering  materially  in  many  important  particulars. 
To  the  first  class  belong  those  easements  which  are  created  by 
the  act  of  man,  and  to  the  second  class  those  which  are  given 
by  law,  to  every  owner  of  land.  The  latter  rights  are  given 
by  law  because,  without  them,  no  man  would  have  security 
that  his  land  would  not  at  any  moment  be  rendered  useless  by 
an  act  of  a  neighbor  otherwise  lawful,  or  because  a  neighbor 
might  otherwise  deprive  a  landowner  of  the  benefits  derivable 
from  things  which  in  the  course  of  nature  have  been  provided 
for  the  common  good  of  mankind,  and  which  the  law  therefore 
deems  it  wrong  that  one  man  should  altogether  appropriate 
for  his  own  use  to  the  detriment  of  another  person.  These 
easements  are  inherent  in  the  land  ex  jure  naturce,  of  natural 
right,  are  secured  to  the  landowner  by  the  common  law,  and 

^  Cited  with  approbation  in  Stevenson  v.  Wallace,  27  Gratt.  87.  An 
easement  has  sometimes  been  said  to  be  "  a  right  which  one  proprietor 
has  to  some  profit,  benefit,  or  beneficial  use,  out  of,  in,  or  over  the  estate 
of  another."  Ritger  v.  Parker,  8  Cush.  147.  "  A  charge  or  burden  upon 
one  estate  (the  servient),  for  the  benefit  of  another,  the  dominant."  Mor- 
rison V.  Marquardt,  24  Iowa,  35.  "  A  liberty,  privilege,  or  advantage 
.  which  one  may  have  in  the  lands  of  another  without  profit."  Big  Moun- 
tain Improvement  Co.'s  Appeal,  54  Penn.  St.  361,  »*  A  privilege  which 
one  neighbor  hath  in  the  land  of  another,  as  appurtenant  to  his  own  land." 
Mounsey  v.  Ismay,  3  H.  &  C.  486.     See  Bowen  v.  Team,  6  Rich.  298. 


EASEMENTS    GENERALLY. 


Licenses. 


are  usnall}'  called  "  Natural  Rights."  •=  It  will  be  seen  here- 
after that  the  purpose  of  Natural  Rights  is  to  secure  necessary 
support  for  land  from  the  adjacent  and  subjacent  soil,  while  it 
is  allowed  to  remain  in  its  natural  condition,  and  the  due  en- 
joyment of  air,  light,  and  water,  which,  by  the  provision  of 
nature,  flow  over  the  soil  of  one  landowner  to  that  of  another 
for  the  common  benefit  of  each.  Though  Natural  Rights  are 
a  species  of  Easements,  the  expression  "  Easement  "  is  com- 
monly used  exclusively  to  denote  the  first  class  of  easements 
to  which  allusion  has  been  made,  —  that  is,  easements  created 
by  the  act  of  man,  —  and  in  that  sense  the  word  is  used 
throughout  this  work  ;  while  the  second  class  of  easements  — 
that  is,  those  created  by  operation  of  law —  are  distinguished 
by  the  name  of  "  Natural  Rights."  It  is  very  essential  that 
the  difference  in  the  origin  and  character  of  these  two  classes 
of  easements  should  be  borne  in  mind. 

Returning  to  the  definition  of  Easements  in  Termes  de  la 
Le}',  cited  above,  it  will  be  noticed  that  those  rights 
are  said  to  be  privileges  that  one  neighbor  hath   of 
another  b^  writing  or  prescription.     At  the  present  day*^  this 
is  not  strictly  true,  for  if  an  attempt   be  made  to  confer  an  ' 
easement  by  writing  not  under  seal,  all  that  the  grantee  will  j.^vT^  cr 
get  will  be  a  license  to  use  the  privilege,  as  he  would  if  the 
privilege  were  granted  by  word  of  mouth  ;  he  will  not  get  any  ^ 

vested  right  entitling  him  to  continue  its  use  and  enjoyment 
against  the  will  of  the  grantor.  Thus  it  has  been  said  :  "  A 
right  of  way  or  a  right  of  passage  for  water  (where  it  does 
not  create  an  interest  in  the  land)  is  an  incorporeal  right,  and 
stands  upon  the  same  footing  with  other  incorporeal  rights  — • 
such  as  rights  of  common,  rents,  advowsons,  &c.  It  lies  not 
in  livery,  but  in  grant,  and  a  freehold  interest  in  it  cannot  be 
created  or  passed  (even  if  a  chattel  interest  may,  which  I 
think  it  cannot),  othenvise  than  hy  deed.''  ^     It  is  very  impor- 

■-'  Natural  rights  have  sometimes  been  called  "  natural  easements." 

"*  In  olden  times  nothing  was  called  a  UTitinc/hnt  a  document  under  seal. 

«  Per  Bayley,  J.,  in  Hewlins  v.  Shippam,  5  B.  &  C.  at  p.  229;  Fenti- 

man  v.  Smith,  4  East,   107;  Cocker  v.  Cowper,  1  C,  M.  &  R.  418.     See 

Fuhr  V.  Dean,  26  Mo.  116;   Stevens  v.  Dennett,  51  N.  H.  331. 


4  NATURE    OF   EASEMENTS. 

tant  to  mark  this  distinction,  for  if  it  is  professed  to  grant  an 
easement  by  an  instrument  which  passes  only  a  license  to  the 
grantee,  his  position  is  materially  different  from  what  it  was  in- 
tended to  be,  and  he  may  find  his  interest  suddenly  terminated 
bv  the  act  of  his  grantor  when  he  least  expects  it.^  A  grant 
by  deed  will  pass  an  indefeasible  right  to  an  easement,  not 
only  against  strangers,  but  against  the  grantor  and  his  assigns  ; 
whereas  "  a  dispensation  or  license  properly  passeth  no  in- 
terest, nor  alters  or  transfers  property  in  anything,  but  only 
makes  an  action  lawful  which  without  it  had  been  unlawful."-'' 
Though  the  interest  of  a  mere  licensee  is  therefore  of  so  limited 
a  character  as  against  his  grantor,  it  will  be  seen  hereafter 
that  his  right  to  enjoy  his  privilege  is  not  absolutely  at  the 
mercy  of  strangers,  for  he  has  generally  power  to  sue,  either 
in  his  own  name  or  in  the  name  of  his  grantor,  any  stranger 
who  is  a  wrong-doer  who  hinders  him  in  the  enjoyment  of  his 
privilege.^ 

This  difference  existing  between  Easements,  Natural  Rights, 
and  Licenses,  it  is  proposed  next  to  consider  the  several  parts 
of  the  definition  of  an  easement  above  given,  and  finally  to 
conclude  the  section  with  some  remarks  of  a  general  character 
relative  to  the  nature  of  easements. 

In  the  first  place  an  easement  is  a  Privilege.  The  word 
An  ease-  '"'"privilege,^''  it  will  be  observed,  is  that  used  in  the  old 
ment  is  a      definition  in  Termes  de  la  Ley,  and  it  is  retained,  as  it 

Privilege.  -^  ' 

expresses  very  accurately  the  nature  of  an  easement 
in  this  respect.  An  easement  is  not  a  right  to  land  nor  to  any 
corporeal  interest  in  land,  and  thus  a  grant  of  a  right  of  way 
does  not  convey  the  soil  over  which  the  way  passes  to  the 
grantee,^  and  from  this  it  follows  as  a  natural  consequence, 

1  See  Morse  v.  Copeland,  2  Gray,  302;  Ruggles  v.  Lesure,  24  Pick. 
187;  Foster  v.  Browning,  4  R.  I.  47;  Dyer  v.  Sandford,  9  Met.  395. 

/  Per  Vaughan,  C.  J.,  in  Thomas  v.  Sorrell,  Vaughan,  351;  Wood  r. 
Leadbitter,  13  M.  &  W.  838;  14  L.  J.  Exch.  161. 

3  Whaley  v.  Laing,  2  H.  &  N.  476;  26  L.  J.  Exch.  327;  in  Exch.  Cham. 
.3  H  &  N.  675 ;  27  L.  J.  Exch.  422.     Per  Bramwell,  B.,  in  Stockport  Wa- 
terworks Company  v.   Potter,  3  H.   &  C.  300  ;  Mitcalf  v.  Westaway,  34 
L.J.  C.P.I  13. 

2  Jamaica  Pond  Aqueduct  Co.  v.  Chandler,  9  Allen,  159. 


EASEMENTS   GENERALLY.  6 

that  the  grantee  cannot  prevent  another  person,  even  a  tres- 
passer, from  using  the  land,  if  such  usage  does  not  impede 
hira  in  the  exercise  of  his  right  of  passage.^  In  the  case 
of  Clifford  V.  Hoare,'  Brett,  J.,  marked  this  distinction  be- 
tween an  easement  and  a  corporeal  interest  in  land,  when  he 
said  :  "  The  road  is  not  his,  the  exclusive  use  of  it  is  not 
granted  to  him  ;  what  was  granted  to  him  was  an  easement 
and  nothing  more.  The  soil  has  not  been  conveyed  to  him, 
but  he  has  the  right  to  use  a  road  forty  feet  wide.  If  the  soil 
of  the  road  had  been  granted  to  the  plaintiff,  any  interference 
with  it  would  have  been  actionable  ;  but  where  an  easement 
over  a  road  is  granted,  only  the  reasonable  enjoyment  of  the 
road  passes  ;  this  seems  to  be  the  result  of  the  authorities  as 
to  the  difference  between  the  riglit  to  the  soil  and  an  ease- 
ment over  it."  It  has  been  held  that  a  right  to  take  coal 
from  under  the  land  of  another  person  is  an  incorporeal  right 
or  a  privilege  ;  but  a  right  to  all  the  coal  lying  under  a  par- 
ticular close  is  a  corporeal  right  and  not  a  privilege,  because 
it  is  a  right  to  part  of  the  soil/  A  grant  of  the  exclusive  use 
of  land  does  not  confer  merely  a  privilege  of  using  the  land, 
but  as  it  excludes  the  owner  of  the  soil  from  all  benefit  it  is  a 
grant  of  the  soil  itself,  and  such  a  right  is  therefore  not  an 
easement,*  and  it  was  said  by  the  loi'd  chancellor  in  the 
case  of  Dyce  v.  Lady  James  Hay,'  that  "  neither  by  the  law 
of  Scotland  nor  of  England  can  there  be  a  prescriptive  right 
in  the  nature  of  a  servitude  or  easement  so  large  as  to  pre- 
clude the  ordinary  uses  of  property  by  the  owner  of  the  lands 
affected." 
The  same  principle  applies  in  the  case  of  public  ways,  which, 

''  Rex  V.  Jolliffe,  2  T.  R.  90.  And  see  Cook  Co.  u.' Chicago,  &c.  Rail- 
road Co.  35  111.  464. 

'■  L.  R.  9  C.  P.  362  ;  43  L.  J.  C.  P.  225.  See  Read  v.  Leeds,  19  Conn, 
183. 

J  Wilkinson  v.  Proud,  11  M.  &  W.  33;  12  L.  J.  Exch.  227  ;  Sanders  v. 
Norwood,  Cro.  Eliz.  683;  Doe  d.  Hanley  v.  Wood,  2  B.  &  Aid.  724. 

^  Buszard  v.  Capel,  8  B.  &  C.  141  ;  6  L.  J.  K.  B.  267  ;  in  Exch.  Cham. 
6  Bing.  150;  3  Y.  &  J.  344;  Roads  v.  Parish  of  Trumpington,  L.  R.  6 
Q.  B.  56;  40  L.  J.  M.  C.  35.     See  Caldwell  v.  Fulton,  31  Penn.  St.  475. 

'  1  Macq.  305;  Hext  v.  Gill,  L.  R.  7  Ch.  Ajjp.  699  ;  41  L.  J.  Ch.  761. 


6  NATURE   OF   EASEMENTS. 

it  will  be  shown  presently,  are  not  easements,  though  in  many 
of  their  incidents  they  are  analogous.  The  respondent,  in  a 
case  stated  by  a  metropolitan  magistrate,  was  owner  of  some 
premises  adjoining  a  public  highway,  which  he  used  for  de- 
positing machinery  of  a  heavy  character.  In  conveying  the 
machinery  to  his  yard,  across  the  paved  footway,  which  ran 
in  front  of  his  gate,  the  respondent  broke  the  flag-stones,  and 
was  summoned  before  the  magistrate,  under  the  Highway  Act, 
for  a  nuisance  ;  and  it  became  a  question  whether  he  had  a 
right  to  take  his  machinery  into  the  yard  in  that  manner,  or 
whether,  by  the  dedication  of  the  way  to  the  public  for  a  foot- 
way, he  had  been  so  deprived  of  his  right  to  the  use  of  the 
soil  that  it  could  not  be  used  for  the  purpose  of  conveying  the 
machinery  over  it  to  the  yard.  It  was  decided  that  his  right 
to  the  use  of  the  soil  of  the  footway  for  the  machinery  was  not 
lost.  The  Court  of  Queen's  Bench  said  :  "  The  right  of  the 
respondent  depends  upon  the  nature  and  extent  of  the  rights 
acquired  by  the  public  over  the  footway  in  question  either  at 
common  law  or  under  the  Highway  Acts  or  the  Metropolis 
Local  Management  Act,  18  &  19  Vict.  c.  120,  s.  98.  The 
owner  who  dedicates  to  the  public  use  as  a  highway  a  portion 
of  his  land,  parts  with  no  other  right  than  a  right  of  passage 
to  the  public  over  the  land  so  dedicated,  and  may  exercise  all 
other  rights  of  ownership  not  inconsistent  therewith, ^  and  the 
appropriation  made  to  and  adopted  by  the  public  of  a  part  of 
the  street  to  one  kind  of  passage,  and  another  part  to  another, 
does  not  deprive  him  of  any  rights  as  owner  of  the  land,  not 
inconsistent  with  the  right  of  passage  by  the  public."  "* 

An  easement  is  a  privilege  without  profit.  A  right  by 
"Without  which  one  person  is  entitled  to  remove  and  appro- 
P™  '■  priate  for  his  own  use  any  part  of  the  soil  belonging 

to  another  man,  or  anything  growing  in  or  attached  to  or 
subsisting  upon  his  land,  for  the  purpose  of  the  profit  to  be 
gained  from  the  property  thei-eby  acquired  in  the  thing  re- 

^  See  Robbins  r.  Borman,  1  Pick.  122;  Adams  v.  Emerson,  6  Pick.  57. 

"*  Vestry  of  St.  Mary,  Newington,  v.  Jacobs,  L.  R.  7  Q.  B.  47  ;  41  L.  J. 
M.  C.  72.  See  Hildreth  v.  Lowell,  11  Gray,  345;  Codman  v.  Evans,  5 
Allen,  308. 


EASEMENTS   GENERALLY.  7 

moved,  has  always  been  considered  in  law  a  different  species 
of  right  from  an  easement,  and  is  commonly  called  a  profit  a 
prendre.  Thns,  it  was  said  in  an  old  case :  "  The  word 
'  easement '  is  known  in  law,  but  here  the  thing  itself  is  set 
forth,  viz.,  to  catch  fish,  &c.,  and  certainly  no  instance  can  be 
given  of  a  prescription  for  such  a  liberty  by  such  a  word  or 
name."  "  So  it  has  been  held  that  a  right  to  take  stones  from 
the  land  of  another  person  to  mend  roads  is  a  profit  a  prendre 
and  not  an  easement  ; "  as  also  is  the  right  to  turn  cattle  into 
a  lane  for  the  purpose  of  obtaining  pasture ;  ^  and  a  right  to 
enter  land  and  to  cut  and  carry  away  trees  there  growing.* 
So  of  a  right  to  take  seaweed  from  the  land  or  beach  of  an- 
other ;  1  or  to  fish  in  an  unnavigable  stream  on  another's 
land  ;  ^  or  to  hunt  on  his  land  ;  ^  or  to  carry  away  drifting 
sand  from  his  beach.'*  It  has  been  decided,  however,  that  a 
right  to  enter  land  and  to  draw  and  take  away  water  is  an 
easement  and  not  a  profit  a  prendre.,  the  reason  being  that 
water  is  not  a  part  or  the  produce  of  the  soil,  nor  the  prop- 
erty of  the  owner  of  the  land  over  which  it  flows,  or  on  which 
it  is  standing,  unless  it  is  confined  in  a  tank  or  other  vessel.*" 

An  easement  is,  in  the  next  place,  defined  to  be  a  right 
which  the  owner  of  one  tenement  has  a  right  to  en-   -^^  ^^^^_ 
iov  in  respeet  of  that  tenement  in  or  over  the  tene-   me'its  in 

J    J  X  .'  ^  gross. 

ment  of  another  person.     Here,  it  will  be  observed, 

two  tenements  are   mentioned  —  one    is    that    of    which  the 

owner  is  entitled  to  the  easement,  the  other  is  that  in  or  over 

"  Peers  v.  Lucy,  4  Mod.  355;  Cobb  v.  Davenport,  4  Vroom,  223. 
°  Constable  v.  Nicholson,  14  C.  B.  N.  S.  230;  32  L.  J.  C.  P.  240. 
^  Bailey  v.  Appleyard,  8  A.  &  E.  161. 
«  Bailey  v.  Stevens,  12  C.  B.  N.  S.  91;  31  L.  J.  C.  P.  226. 

1  Hill  V.  Lord,  48  Me.  84.     See  Huff  v.  McCauley,  53  Penn.  St.  209. 

2  Waters  v.  Lilly,  4  Pick.  148  ;  Bland  v.  Lipscombe,  30  E.  L.  &  Eq. 
189;  4  E.  &  B.  714.  See  Melvin  v.  Whiting,  7  Pick.  80;  13  Pick.  184; 
McFarlin  v.  Essex  Co.  10  Cusb.  304. 

3  Pickering  v.  Noyes,  4  B.  &  C.  639;  Wickham  v.  Hawker,  7  M.  &  W. 
63. 

*  Blewett  V.  Tregonning,  3  A.  &  E.  554. 

•■  Race  V.  Ward,  4  E.  &  B.  702;  24  L.  J.  Q.  B.  153  ;  Manning  v.  Was- 
dale,  5  A.  &  E.  758;  6  L.  J.  N.  S.  K.  B.  59.  And  see  Hill  v.  Lord,  48 
Me.  99. 


8  NATURE   OF   EASEMENTS. 

which  the  easement  is  to  be  enjoyed,  and  it  will  be  further 
remarked  that  the  easement  is  to  be  enjoyed  in  respect  of  the 
first-named  tenement.  If  an  easement  were  a  right  to  which 
a  person  could  be  entitled  irrespectively  of  any  land  of  which 
he  is  possessed,  such  a  right  would  be  called  an  easement  in 
gross,  and  a  contention  has  been  raised  as  to  whether  the  law 
will  not  recognize  such  a  right;  the  word  "easement"  may 
indeed,  in  many  instances,  be  fo-und  to  have  been  applied  to 
rights  of  that  description  —  as,  for  instance,  in  the  case  of 
Dovaston  v.  Payne/  where  Heath,  J.,  is  reported  to  have  said, 
when  speaking  of  a  public  highway,  the  right  to  the  use  of 
which  belonging  to  the  public  could  not  have  been  had  in  re- 
spect of  any  tenement,  —  "the  property  is  in  the  owner  of  the 
soil,  subject  to  an  easement  for  the  benefit  of  the  public."  It 
will  be  noticed,  moreover,  that  in  the  old  definition  of  an 
easement  in  Termes  de  la  Ley,  there  is  nothing  said  about  a 
tenement  in  respect  of  which  a  right  to  be  an  easement  must 
be  enjoyed;  but  this,  according  to  modern  decisions,  is  an- 
other of  the  defects  in  that  definition,  for  it  is  clearly  estab- 
lished now  that  there  is  no  such  right  known  to  the  law  as 
an  easement  in  gross.  True  it  is  that  there  may  be  rights 
analogous  in  many  respects  to  easements  unattached  to  any 
tenement,  but  they  are  not  easements,  and  lack  many  of  the 
peculiar  characteristics  of  those  rights ;  for  instance,  a  right 
of  way  in  gross  is  a  personal  right  only,  and  cannot  be  as- 
signed by  the  grantee  to  another  person,'  whereas  an  ease- 
ment of  way  is  appurtenant  to  the  grantee's  land,  and  will 
pass  with  that  land  to  an  assignee,  if  proper  words  of  convey- 
ance be  used. 

Several  authorities  may  be  cited  in  support  of  the  prop- 
osition that  a  right  in  gross  is  not  an  easement  —  as,  for  in- 
stance, Rangeley  v.  The  Midland  Railway  Company,"  which 

*  2  Sm.  L.  C.  132,  6th  ed.;  2  H.  Bl.  527.  In  Brumfitt  v.  Roberts  (L. 
R.  5  C.  P.  224 ;  39  L.  J.  C.  P.  95),  a  right  to  a  pew  in  church  is  designated 
an  easement;  and  in  Barlow  v.  Rhodes  (1  C.  &  M.  at  jj.  448),  Bayley,  B., 
.applied  the  same  word  to  a  right  of  common. 

'  Ackroyd  v.  Smith,  10  C.  B.  164;  19  L.  J.  C.  P.  315;  Weekly  v.  Wild- 
man,  per  Triby,  C.  J.,  1  Ld.  Raym.  405. 

"  L.  R.  3  Ch.  App.  306;  37  L.  J.  Ch.  313. 


EASEMENTS  GENERALLY.  » 

was  a  case  arising  out  of  the  diversion  of  a  public  footway 
by  the  railway  company.  Lord  Cairns,  L.  J.,  in  the  course 
of  his  judgment,  expressed  his  opinion  on  this  point  in  most 
distinct  terms,  for  he  said:  "Now  it  is  said  that  it"  (that 
is,  the  land  over  which  the  new  footway  was  to  be  made)  "  is 
not  to  be  permanently  used,  and  that  the  only  object  of  the 
company  is  to  create  an  easement  over  it,  and  that  the  land 
will  remain  the  freehold  and  property  of  the  original  owner 
subject  to  that  easement.  I  will  assume,  in  the  first  place, 
that  that  is  a  correct  expression,  and  that  the  object  is  to 
create  what  is  properly  termed  an  easement  over  the  land. 
....  But  I  must  also  observe  that  it  appears  to  me  to  be  an 
incorrect  expression  to  speak  of  this  as  an  easement.  There 
can  be  no  easement  properly  so  called  unless  there  be  both  a 
servient  and  a  dominant  tenement.  There  is,  in  this  case,  no 
dominant  tenement  whatever.  It  is  true  that,  in  the  well- 
known  case  of  Dovaston  v.  Payne,  Mr.  Justice  Heath  is  i-e- 
ported  to  have  said,  with  regard  to  a  public  highway,  that 
the  freehold  continued  in  the  owner  of  the  adjoining  land, 
subject  to  an  easement  in  favor  of  the  public  ;  and  that  ex- 
pression has  occasionally  been  repeated  since  that  time.  That, 
however,  is  hardly  an  accurate  expression.  There  can  be  no 
such  thing,  according  to  our  law,  or  according  to  the  civil  law, 
as  what  I  may  term  an  easement  in  gross.  An  easement 
must  be  connected  with  a  dominant  tenement.  In  truth,  a 
public  road  or  highway  is  not  an  easement ;  it  is  a  dedication 
to  the  public  of  the  occupation  of  the  service  of  the  land  for 
the  purpose  of  passing  and  repassing,  the  public  generally 
taking  upon  themselves  (through  the  parochial  authorities  or 
otherwise)  the  obligation  of  repairing  it.  It  is  quite  clear 
that  that  is  a  very  different  thing  from  an  ordinary  easement 
where  the  occupation  remains  in  the  owner  of  the  servient 
tenement,  subject  to  the  easement."  So  again,  Martin,  B.,  in 
Hill  V.  Tupper,"  said  :  "  An  easement  is  a  right  ancillary  to 
the  enjoyment  of  land,"  and  there  are  other  decisions  to  the 
same  effect."" 

"  2  H.  &  C.  121  ;  32  L.  J.  Exch.  at  p.  217. 

•"  See  also  Sliuttleworth  v.  Le  Fleming,  19  C.  B.  N.  S.  687  ;  34  L.  J.  C. 
P.  309;  Mounsey  v.  Israay,  3  H.  &  C.  48G;  34  L.  J.  Excli.  52. 


10  NATURE   OF   EASEMENTS. 

In  America  tlie  right  or  privilege  of  the  community  in  pub- 
lic highways  has  generally  been  called  an  easement,  though 
perhaps  not  strictly  such.  If  an  easement,  it  is  an  easement 
in  gross,  since  it  is  personal  and  not  appurtenant  to  any  estate 
owned  by  the  individuals  claiming  it ;  but  it  is  something 
more  than  an  easement,  partaking  of  the  nature  of  a  profit  a 
prendre  ;  since  the  public  authorities  have  a  right  to  take  and 
carry  away  from  the  soil  any  earth,  rock,  gravel,  trees,  or  other 
things  necessary  for  the  repair  of  the  road,  not  only  at  the 
place  where  found,  but  on  any  other  portion  of  the  same  road, 
or  even  elsewhere  within  the  jurisdiction  of  the  same  munic- 
ipal authorities. 1  Accordingly  such  rights  are  not  elaborately 
discussed  in  this  treatise. 

An  easement  cannot  be  severed  from  the  land  to  which  it 
is  annexed  and  made  a  right  in  gross.^ 

In  America  this  doctrine  of  Ackroyd  v.  Smith  has  not  been 
universally  approved,  and  here  it  has  frequently  been  held  that 
an  easement  may  be  severed  from  the  land  with  which  it  is 
originally  connected  or  used ;  and  if  the  terms  of  the  grant  do 
not  forbid,  may  be  made  a  right  in  gross,  and  assignable,  or 
descendible  to  the  heirs  of  the  original  grantee,  quite  discon- 
nected from  any  particular  estate.  Thus  when  P.  conveyed  to 
B.  a  tract  of  land  with  a  spring  on  it,  reserving  to  himself,  his 
heirs  and  assigns,  the  right  of  taking  water  therefrom  forever 
through  a  pipe,  and  a  right  to  enter  and  repair  the  pipe,  when 
necessary,  upon  payment  of  damages  therefor,  but  without  any 
limitation  as  to  the  time  or  place  when  such  right  should  be 
enjoyed,  it  was  held  that  such  right  was  assignable  by  P.  to 
G.,  although  G.  had  no  interest  in  the  land  of  P.  to  which  the 
right  was  annexed,  but  used  it  in  connection  with  other  land 
obtained  from   other  parties. ^     And  in  The  Lonsdale  Co.  v. 

^  Denniston  v.  Clark,  125  Mass.  216;  Hovey  v.  Mayo,  43  Me.  322  ;  New 
Haven  v.  Sargent,  38  Conn.  50. 

^  Ackroyd  v.  Smith,  10  C.  B.  164;  19  L.  J.  C.  P.  315. 

2  Goodrich  v.  Burbank,  12  Allen,  459,  in  which  Foster,  J.,  examines 
and  denies  the  doctrine  of  Ackroyd  v.  Smith.  And  this  was  again  ap- 
proved in  the  same  court  in  Goodrich  v.  Burbank,  97  Mass.  27;  French 
V.  Morris,  101  Mass.  68;  Owen  v.  Field,  102  Mass.  108  ;    Amidon  v.  Harris, 


EASEMENTS   GENERALLY.  11 

Moies,^  before  the  Circuit  Coui't  of  the  United  States,  Judge 
Curtis  said  :  "  I  know  no  rule  of  the  common  hiw  which  pro- 
hibits grants  of  the  incorporeal  right  to  divert  water  from 
being  made  in  gross.  If  I  have  a  spring,  I  may  sell  the  right 
to  take  water  from  it  by  pipes,  to  one  who  does  not  own  the 
land  across  which  the  pipes  are  to  be  carried,  and  I  may  re- 
strict the  use  to  a  particular  house  or  not  as  I  please." 

DOMINANT    AND    SERVIENT    TENEMENTS    AND    OWNERS. 

It  may  here  be  mentioned  that  the  tenement  in  respect  of 
which  an  easement  is  enjoyed  is  called  the  "  Dominant  Tene- 
ment," and  the  owner  of  that  tenement  is  called  the  "  Domi- 
nant Owner,"  while  the  tenement  in  or  over  which  the  right 
is  exercised  is  called  the  "  Servient  Tenement,"  and  the  owner 
thereof  is  called  the  "  Servient  Owner." 

As  it  is  essential  to  the  existence  of  an  easement  that  there 

shall  be  two  tenements,  —  a  dominant  tenement   to    n„„,;,.nnf 

which  the  ri.trht  is  appurtenant,  and  a  servient  tene-   amiservi- 
V  .         .         .  „  ent  tene- 

ment in  or  over  which  that  right  is  enjoyed,^  —  so    mentsdis- 

it  is  also  essential  that  those  tenements  shall  be  dis- 
tinct properties ;  that  is,  that  they  shall  belong  to  different 
persons.  This  is  a  point  which  scarcely  needs  demonstration, 
for  it  is  obvious  that  if  two  tenements  belong  to  one  individ- 
ual, he  has  a  right,  as  owner,  to  use  each  in  whatsoever  man- 
ner he  finds  most  convenient  to  himself,  and  he  may  make  the 
one  tenement  servient  to  the  other  simply  because  it  is  his 
own  ;  in  whatever  manner,  therefore,  he  exercises  his  right,  he 
exercises  it  in  his  capacity  of  owner  of  the  soil,  and  the  right 
he  exercises  is  not  an  easement,  but  a  projDrietary  right  in- 
cident to  the  ownei'ship  of  the  land.^  In  Bright  v.  Walker,*' 
Parke,  B.,  in  speaking  of  the  causes  which  would  prevent  an 
easement  being  acquired  by  prescription,  says  :  "  For  the  same 

113  Mass.  59.  See  "Wagner  i'.  Hanna,  38  Cal.  Ill ;  Spensley  v.  Valentine, 
34  Wis.  154  ;  Tinicum  Fishing  Co.  i-.  Carter,  61  Penn.  St.  38. 

1  21  Law  Rep.  664  (185  7).     See  Bissell  v.  Grant,  35  Conn.  288. 

2  Dark  v.  Johnston,  55  Penn.  St.  164;  Mabie  v.  Matteson,  17  Wis.  1; 
Scott  V.  Beutel,  23  Gratt.  1. 

8  Oliver  v.  Hook,  47  Md.  301.  ^  1  C,  M.  &  R.  at  p.  219. 


12  NATURE   OF   EASEMENTS. 

reason  it  would  not"  (that  is,  title  would  not  be  acquired) 
"  if  there  had  been  unity  of  possession  during  all  or  part  of 
the  time  ;  for  then  the  claimant  would  not  have  enjoyed  as  of 
right  the  easement,  but  the  soil  itself."  "  We  all  agree," 
said  Tindal,  C.  J.,  in  delivering  judgment  in  the  Exchequer 
Chamber,  "  that  where  there  is  a  unity  of  seisin  of  the  land, 
and  of  the  way  over  the  land,  in  one  and  the  same  jserson,  the 
right  of  way  is  either  extinguished  or  suspended,  according  to 
the  duration  of  the  respective  estates  in  the  land  and  the 
way."  '  So,  again,  where  the  defendant  claimed  a  right  to 
pollute  a  stream  to  the  detriment  of  a  mill-owner  by  reason 
of  having  been  accustomed  for  twenty  yeai's  to  throw  cinders 
into  the  water,  Coleridge,  J.,  when  delivering  the  judgment 
of  the  court,  said  :  "  Or,  secondly,  the  defendant  might  claim 
the  banks  and  bed  of  the  Hebble,  on  and  in  which  the  cinders 
and  scorisa  have  been  deposited,  as  in  his  own  occupation,  in 
which  case  the  right  to  deposit  them  there  could  be  no  ease- 
ment."" And,  again,  in  the  case  of  a  claim  of  right  to  light, 
it  was  decided  that  while  the  dominant  and  servient  tene- 
ments were  in  the  occupation  of  the  same  person,  no  easement 
or  right  to  unobstructed  light  could  be  acquired  by  prescrip- 
tion ;  and  Lord  Hatherley,  C,  said  :  "  I  take  the  principle  of 
that  case"  (that  is,  a  case  he  had  been  mentioning),  "  in  spite 
of  one  expression  as  to  the  possibility  of  interruption,  to  be, 
that  in  order  to  obtain  an  easement  over  land  you  must  not 
be  the  possessor  of  it,  for  you  cannot  have  the  land  itself  and 
also  an  easement  over  it."  * 

It  is  on  this  principle  that  a  tenant  cannot  acquire  an  ease- 
ment by  prescription  in  land  belonging  to  his  landlord,  for 
the  possession  and  user  by  the  tenant  is  the  possession  and 
user  of  his  landlord,  and  the  landlord  could  not  acquire  an 
easement  in  his  own  soil.''     A  question,  however,  might  arise, 

'  James  v.  Plant,  4  A.  &  E.  at  p.  7G1 ;  6  L.  J.  N.  S.  Exch.  260. 
"  Murgatroyd  v.  Robinson,  7  E.  &   B.  at  p.  397;  2G  L.  J.  Q.  B.  at  p. 
•238. 

*  Ladynian  i'.  Grave,  L.  R.  6  Ch.  App.  at  p.  767. 

<=  Gayford  v.  Mollatt,  L.  R.  4  Ch.  App.  133;  Russell  v.  Harford,  L.  R. 
2  Eq.  507, 


EASEMENTS   GENERALLY.  13 

whether  a  tenant  could  not  acquire  an  easement  by  prescrip- 
tion under  the  Prescription  Act*^  in  land  of  his  lessor,  not 
against  him,  but  against  another  tenant  to  whom  the  quasi- 
servient  tenement  happened  to  be  leased,  such  easement  being 
coextensive  with  the  period  of  years  during  which  the  tene- 
ments were  jointly  leased.  Such  a  question  could  not  arise 
under  the  common  law,  for  a  tenant  can,  at  common  law,  pre- 
scribe in  right  of  his  landlord,  the  owner  of  the  fee,  only  ;* 
but  under  the  Prescription  Act  claims  to  easement  by  pre- 
scription may  be  made  and  sustained  in  right  of  the  occupier 
of  the  land/  If  such  an  easement  can  be  acquired  it  is  clear 
it  could  only  be  in  cases  of  long  leaseholds,  which,  however, 
are  very  common  at  the  present  day.  The  possibility  of  one 
tenant  acquiring  an  easement  against  another  tenant  holding 
under  the  same  landlord  seems  to  have  presented  itself  to  the 
mind  of  Sir  R.  T.  Kindersley,  V.  C,  when  delivering  judg- 
ment in  the  case  of  Daniel  v.  Anderson,^  for  he,  after  laying 
down  that  a  tenant  could  not  acquire  an  easement  against  his 
landlord  by  long  user,  said :  "  And  whatever  may  he  the  rights 
of  one  tenant  against  another^  the  owner  remains  where  he 
was,  and  therefore  you  cannot  talk  of  any  easement  acquired 
by  him  or  vesting  at  2i\\,  for  whatever  rights  one  tenant  may 
have  against  another,  it  is  only  as  between  them  as  tenants.'''' 
Further  than  this,  a  case  of  the  kind  actually  occurred.  The 
point,  however,  was  not  decided  as  to  easements  generally, 
but  was  limited  to  cases  of  rights  to  unobstructed  light ;  for 
the  decision  turned  upon  the  words  of  the  third  section  of  the 
Prescription  Act,  under  which  the  easement  of  unobstructed 
light  is  alone  acquired.  The  words  of  that  section,  it  will  be 
shown  hereafter,  differ  from  those  of  the  other  sections  of  the 
act,  and  this  difference  has  a  very  material  effect  on  the 
mode  of  acquisition  of  the  various  kinds  of  easements  under 
the  respective  sections.  In  the  case  alluded  to,  both  the 
dominant  and  servient  tenements  were  in  the  occupation  of 
tenants  under  long  leases,  both  leases  being  dated  the  same 

'^  2  &  3  Wm,  IV.  c.  71.  «  Large  v.  Pitt,  Peake's  Ad.  Ca.  152. 

•^  Sections  2  and  5.  "  31  L.  J.  Ch.  610. 


14  NATURE   OF   EASEMENTS. 

day,  and  granted  by  the  same  landlord,  and  after  a  time  suffi- 
cient to  enable  a  person  to  acquire  a  right  to  light,  one  tenant 
erected  a  greenhouse  which  obstructed  the  other  tenant's 
light,  upon  which  the  latter  commenced  an  action.  It  was 
contended  for  the  defendant  that  one  tenant  could  not  acquire 
an  easement  against  the  other ;  but  it  was  held  that  in  the  case 
before  the  court  he  could  and  had  done  so,  but  it  was  on  ac- 
count of  the  peculiar  wording  of  the  third  section  of  the  Pre- 
scription Act.'*  It  is  remarkable  in  this  case,  however,  that 
the  court  seemed  to  think  that  such  an  easement  acquired  by 
one  tenant  against  the  other  would  survive  to  the  reversioner 
after  the  expiration  of  the  leases,  supposing  the  freeholds  had 
by  that  time  passed  to  different  owners,  so  that  the  easement 
might  be  acquired  when  there  was  unity  of  ownership  in  the 
freeholds,  not  only  for  the  tenant,  but  for  the  future  freeholder 
of  the  dominant  tenement,  if  a  severance  should  occur  before 
the  leases  expired.  But  all  this,  it  must  be  remembered,  de- 
pends upon  the  peculiar  wording  of  the  section  of  the  statute 
relating  to  light,  and  could  not  happen  in  the  case  of  other 
easements.  The  court  itself  said  at  the  end  of  the  judgment 
that  it  might  be  that,  following  out  the  rule  into  every  pos- 
sible case,  some  apparent  difficulties  might  at  times  be  sug- 
gested ;  but  as  it  is  thought  that  this  point  could  only  occur 
under  the  third  section  of  the  act,  these  difficulties,  it  is  also 
thought,  could  not  be  suggested. 

Although  no  easement  can  be  acquired  by  prescription  by 
a  tenant  against  his  landlord,  the  landlord  can  confer  any 
right  he  pleases  upon  his  tenant  by  grant,  and  in  case  of  an 
easement  of  necessity  a  grant  will  be  implied.* 

As  it  is  essential  to  the  existence  of  an  easement  that  there 
Easements  shall  be  a  dominant  tenement  in  respect  of  which 
beneficial  h^q  right  may  be  possessed,  so  it  is  also  essential  that 
inant  tene-    the    easement  shall  be  beneficial  to    the  occupation 

inent.  r-       i  -,        ■  rr.,         i        t 

or    the    dommant  tenement,      ilie    leadmg  case  in 
which  this  principle  has  been  recognized  and  followed  is,  per- 

''  Frewen  r.  Philipps,  11  C.  B.  N.  S.  449;  30  L.  J.  C.  P.  356. 
»  Gayford  v.  Moffatt,  L.  R.  4  Ch.  Ap.  133. 


easp:ments  generally.  15 

haps,  Ackroyd  v.  Smith/  in  which  Coleridge,  J.,  after  citing 
the  judgment  of  Lord  Brougham  in  Keppell  v.  Bailey,*  said  : 
"  It  would  be  a  novel  incident  attached  to  land  that  the 
owner  and  occupier  should,  for  purposes  wholly  unconnected 
with  that  land,  and  merely  because  he  is  owner  and  occupier, 
have  a  right  of  road  over  other  land  ;  and  it  seems  to  us  that 
a  grant  of  such  a  privilege  or  easement  can  no  more  be  an- 
nexed so  as  to  pass  with  the  land  than  a  covenant  for  any  col- 
lateral matter."  This  principle  was  also  approved  in  the 
cases  of  Hill  v.  Tupper,^  and  Ellis  v.  The  Mayor  and  Cor- 
poration of  Bridgnorth.'"  The  case  of  Bailey  v.  Stevens," 
relating  to  a  profit  a  prendre^  is  also  in  point.  In  that  case  a 
right  was  set  up  that  the  owners  of  a  field  had  from  time 
whereof  the  memory  of  man  runneth  not  to  the  contrary,  en- 
joyed the  right  at  their  free  will  and  pleasure  to  enter  a  close 
of  the  plaintiff  to  cut  and  carry  away  and  convert  to  their  own 
use  the  trees  and  wood  crrowincr  and  beinw  in  the  said  close. 
There  was  no  allegg-tion  that  the  wood,  when  cut,  was  to  be 
used  on  or  for  the  benefit  of  the  field  in  respect  of  which  the 
right  was  claimed,  and  it  was  held  that  such  a  right,  though 
it  might  have  been  granted  as  a  right  in  gross,  would  not  pass 
with  the  occupation  of  the  field  as  appurtenant.  Willes,  J., 
in  his  judgment,  said:  "But,  assuming  that  such  grants 
may  be  made,  and  are  capable  of  being  assigned,  I  apprehend 
it  is  clear  that  they  can  only  be  made  in  gross,  and  can  only 
be  assigned  by  the  grantees  by  the  ordinary  conveyances 
known  to  the  law  ;  and  it  is  not  because  the  grantee  may 
happen  to  be  the  owner  of  a  close  at  the  time  the  grant  is 
made  to  him  that  such  a  conveyance  can  be  dispensed  with  in 
favor  of  the  persons  who,  from  time  to  time,  may  succeed 
him  in  the  ownership  of  that  close  ;  "  and,  after  referring  to 

J  10  C.  B.  164;  19  L.  J.  C.  P.  315.  This  case,  Ackroyd  v.  Smith,  was 
explained  by  the  lords  justices  in  Thorpe  v.  Brumfitt,  L.  R.  8  Ch.  App. 
650,  and  it  was  said  by  James,  L.  J.,  to  have  been  misapprehended. 

«•  2  Myl.  &  K.  at  p.  535.     But  see  White  v.  Crawford,  10  Mass.  188. 

'  2  H.  &  C.  121  ;  32  L.  J.  PLxch.  217.     See  Borst  v.  Empie,  1  Seld.  40. 

"•  2  J.  &  H.  67  ;  32  L.  J.  C.  P.  273.     See  Perley  v.  Langley,  7  N.  H.  233. 

»  12  C.  B.  N.  S.  91  ;  31  L.  J.  C.  P.  226.  See  Post  v.  Pearsall,  22  Wend. 
425. 


16  NATURE    OF   EASEMENTS. 

a  class  of  cases  not  in  point,  the  learned  judge  continued  : 
"  In  all  other  cases  the  incident  sought  to  be  annexed,  so 
that  the  assignee  of  the  land  may  take  advantage  of  it,  must 
be  beneficial  to  the  land  in  respect  of  the  ownership  of  it." 
Byles,  J.,  also  said  :  "  How  can  such  a  right  as  this  be  claimed 
by  the  occupier  of  land  as  such  ?  It  is  in  no  way  connected 
with  the  enjoyment  of  the  land  occupied.  A  man  might  as 
well  try  to  make  a  right  of  way  over  land  in  Kent  appurte- 
nant to  an  estate  in  Northumberland.'"  So  also  a  waterworks 
company  is  not  entitled  to  use  the  water  of  a  stream  to  sup- 
ply a  town  at  a  distance  with  water,  merely  because  it  hap- 
pens to  own  land  on  the  banks  of  the  stream  which  would  give 
it  a  right  to  use  it  for  the  purposes  of  that  land." 

It  has  thus   been   shown  to   be   the   law  that  there   must 

not  only  be  a  dominant  and  a  servient  tenement  to 
No  ease-  -^  11,  i 

ment  for      support  an  easement,  but  that  the  easement  must  be 

servient  beneficial  to  the  dominant  tenement.  Beyond  this, 
tenement.  ^^  j^^g  been  decided  that  no  reciprocal  easement  can 
be  acquired  for  the  benefit  of  the  servient  tenement  by  the 
user,  or  exercise  of  the  easement  by  the  dominant  owner;  or, 
as  Cockburn,  C.  J.,  expressed  it  in  his  judgment  in  Mason  v. 
The  Shrewsbury  and  Hereford  Railway  Company ,p  the  ease- 
ment exists  for  the  benefit  of  the  dominant  owner  alone,  and 
the  servient  owner  acquires  no  right  to  insist  on  its  continu- 
ance or  to  ask  for  damages  on  its  abandonment.  In  that  case 
the  water  of  a  stream  had  been  diverted  by  a  canal  company 
for  forty  years,  and  on  the  purchase  of  the  canal  by  the  de- 
fendants under  an  act  of  parliament,  the  water  was  restored 
to  its  former  course.  Owing  to  the  lapse  of  time  the  old  bed 
of  the  stream  had  become  partially  silted  up,  so  that  it  could 
not  as  of  old  carry  off  all  the  water  in  times  of  flood,  and  the 
land  of  the  plaintiff,  which  was  situated  on  the  banks  of  the 
stream,  was  overflowed.  It  is  manifest  that  it  must  often  hap- 
pen, as  in  that  case,  that  the  exercise  of  the  easement  by  the 
dominant  owner,  operates  also  in  favor  of  the  servient  owner. 

°  Swindon  Waterworks  Co.  Limited  v.  Wilts  and  Berks  Canal  Co.  45 
L.  J.  Ch.  638;  L.  R.  9  Ch.  451;  S.  C.  L.  R.  7  H.  L.  697. 
P  L.  R.  6  Q.  B.  578  ;  40  L.  J.  Q.  B.  293. 


EASEMENTS   GENERALLY.  17 

And  the  question  in  such  cases  must  arise,  as  it  did  there, 
whether  the  servient  owner  can  by  the  long  user  acquire  any 
right  against  the  dominant  owner,  to  insist  on  the  continuance 
of  the  exercise  of  the  easement.  It  was  decided  by  the  lord 
chief  justice,  the  other  judges  basing  their  judgments  on  dif- 
ferent grounds,  that  he  cannot. 

The  last  clause  in  the  definition  of  an  easement  above  given, 
points  out  that  the  effect  of  an  easement  is  the  im-  o^jin-ati 
position  of  an  obligation  on  the  servient  owner  to  f"  servient 
suffer  ov  refrain  fi-om  doing  something  on  his  own  suffer  or  re- 
tenement  for  the  advantage  of  the  dominant  owner.  doTng  ^"^ 
An  easement  is  a  right  which  is  appurtenant  to  the  ^^"lething. 
dominant  tenement  and  imposed  upon  the  servient  tenement ; 
and  it  is  important  to  mark  that  it  is  not  imposed  upon  the 
per'son  of  the  servient  owner  ;  therefore  an  obligation  imposed 
upon  liim  to  do  something  for  the  benefit  of  the  dominant  ten- 
ement is  not  an  easement ;  or,  in  other  words,  there  can  be  no 
easement  rendering  it  compulsory  for  the  servient  owner  to  do 
something.  If  the  ordinary  easements  of  light,  support,  way, 
or  watercourse  are  considered,  it  will  be  seen  that  the  obliga- 
tion is,  in  every  case,  of  a  passive  character  as  regards  the 
servient  owner  :  a  right  to  uninterrupted  light  is  a  right  that 
the  servient  owner  shall  refrain  from  building  in  such  a  man- 
ner as  to  obstruct  the  light ;  a  right  to  support  is  a  right  that 
the  servient  owner  shall  refrain  from  moving  means  of  sup- 
port if  the  enjoyment  of  the  dominant  tenement  would  be 
thereby  interrupted  ;  a  right  of  way  is  a  right  that  the  servient 
owner  shall  siffer  the  dominant  owner  to  pass  over  his  land  • 
and  a  right  of  watercourse  is  a  right  that  the  servient  owner 
shall  suffer  water  to  flow  uninterruptedly  over  the  servient 
tenement.  For  this  reason  it  was  laid  down  in  Pomfret  v. 
Ricroft,^'  that  the  grantor  of  a  right  of  way  is  not  bound  to 
repair  the  way,  but  the  grantee  of  an  easement  lias  a  right  to 
repair  the  subject  of  the  easement  and  to  enter  on  the  land  of 
the  grantor  for  that  purpose  whenever  repairs  may  be  required, 

«  1  Wms.  Saund.  at  p.  322  a;  Taylor  v.  Whiteliead,  Doug.  716;  Chaunt- 
ler  V.  Robinson,  4  Exch.  163  ;  19  L.  J.  Exch.  170;  Duncan  v.  LoucL,  6  Q. 
B.,  per  Coleridge,  J.,  at  p.  909, 
2 


18  NATURE   OF   EASEMENTS. 

"  for  when  the  use  of  a  thing  is  granted  everything  is  granted 
by  which  the  gi'antee  may  have  and  enjoy  such  use."  It  is, 
therefore,  clear  that  the  only  obligation  cast  by  law  upon  a 
servient  owner  is,  that  he  shall  not  do  anything  inconsistent 
with  the  right  of  the  dominant  owner. 

CUSTOMS. 

The  definition  of  Easements  having  thus  been  fully  consid- 
ered, a  few  points  relating  to  their  nature  still  remain  to  be 
noticed ;  and,  first,  the  difference  between  easements  and 
customs  claims  attention,  for  the  distinction  appears  not  al- 
ways clearly  to  be  understood.  From  wl^at  has  already  been 
said,  it  will  be  seen  that  an  easement  is  a  right  belonging  to 
an  individual  in  respect  of  his  land  ;  but  a  custom  is  a  usage 
attached  to  a  locality,  and  a  customary  right  belongs  to  no  in- 
dividual in  particular,  but  may  be  enjoyed  by  any  who  inhabit 
the  locality  for  the  time  being,  or  who  belonged  to  the  partic- 
ular class  entitled  to  the  benefit  of  the  custom.  It  will  suffice 
to  refer  to  the  case  of  Mounsey  v.  Ismay  ''  to  exemplify  this  dis- 
tinction. The  action  was  brought  for  a  trespass,  and  the  de- 
fence was  a  supposed  right  claimed  under  the  second  section  of 
the  Prescription  Act.^  The  plea  alleged  that  for  the  full  pe- 
riod of  twenty  years  next  before  suit,  on  Ascension  Day,  horse- 
races had  been,  and  of  right  ought  to  have  been,  and  still 
ought  to  be  holden  on  the  land  where  the  trespass  was  alleged 
to  have  been  committed,  which  was  near  the  city  of  Carlisle; 
and  for  the  full  period  of  twenty  years  next  before  suit  the 
freemen  of  the  city  of  Carlisle  on  the  day  aforesaid  in  every 
year  had  without  interruption  enjoyed  and  claimed  to  enjoy  as 
a  custom  a  right  to  enter  on  the  land  for  the  purpose  of  holding 
horse-races,  justifying  the  alleged  trespass  by  stating  that  the 
defendant  was  one  of  the  freemen  of  Carlisle,  and  entered  the 
locus  in  quo  in  exercise  of  the  right.  There  were  twelve  pleas 
claiming  the  right  under  the  same  section  of  the  act  in  differ- 
ent ways,  and  in  some  substituting  forty  for  twenty  years. 
Martin,  B.,  delivered  the  judgment  of  the  court,  and  after 

'"  3  H.  &  C.  486  ;  34  L.  J.  Exch.  52. 
»  2  &  3  Wm.  IV.  c.  71. 


EASEMENTS   GENERALLY.  19 

stating  the  effect  of  the  pleas,  and  explaining  the  origin  and 
provisions  of  the  Prescription  Act,  continued  :  "  The  ques- 
tion which  has  been  argued  before  us,  and  which  is  the  true 
one,  is  whether  a  custom  for  the  freemen  or  citizens  of  Carlisle 
upon  Ascension  Day  to  enter  upon  another  man's  land  for  the 
purpose  of  holding  horse-races  there,  is  an  easement  within  the 
second  section.  To  be  so  it  must  be  within  the  words  custom, 
prescription,  or  grant  to  a  way  or  other  easement,  or  to  a  water- 
course, or  to  the  use  of  any  water  to  be  enjoyed  upon  land  of 
another ;  and  we  think  it  is  not.  In  the  first  place,  we  do  not 
think  that  this  custom  is  an  easement  at  all.  One  of  the  ear- 
liest definitions  of  an  easement  with  which  we  are  acquainted 
is  in  the  Termes  de  la  Ley,  and  it  is  '  a  privilege  that  one 
neighbor  hath  of  another,  by  writing  or  prescription,  without 
profit,  as  a  way  or  sink  through  his  land.'  In  this  definition 
custom  is  not  mentioned,  prescription  is,  and  it  therefore  seems 
to  point  to  a  privilege  belonging  to  an  individual,  not  a  custom 
which  appertains  to  many  as  a  class."  In  Blackstone's  Com- 
mentaries the  distinction  is  also  marked,  for  it  is  there  said 
that,  "  If  there  be  a  usage  in  the  parish  of  Dale  that  all  the 
inhabitants  of  that  parish  may  dance  on  a  certain  close  at  all 
times  for  their  recreation  (which  is  held  to  be  a  lawful  usage '), 
this  is  strictly  a  custom,  for  it  is  applied  to  theplace  in  general, 
and  not  to  any  particular  persons  ;  but  if  the  tenant  who  is 
seised  of  the  manor  of  Dale  in  fee  alleges  that  he  and  his  an- 
cestors, or  all  whose  estate  he  has  in  the  said  manor,  have  used 
time  out  of  mind  to  have  common  of  pasture  in  such  a  close, 
this  is  properly  called  a  prescription,  for  this  is  a  usage  an- 
nexed to  the  person  of  the  owner  of  this  estate." 

Although  it  is  laid  down  thus  broadly  that  a  custom  and 
an  easement  are  totally  different  rights,  there  undoubtedly  can 
be  a  custom  in  a  locality  under  and  by  virtue  of  which  an  in- 
dividual may  become  entitled  to  an  easement  in  respect  of  his 
estate  situated  in  the  locality  to  which  the  custom  belongs. 
Several  instances  of  such  customary  easements  are  mentioned 
in  the  Reports  as  existing  in  the  county  of  Cornwall  in  re- 

«  Abbott  V.  "Weekly,  1  Lev.  176;  Millechamp  v.  Johnson,  "Willes,  205, 
n.;  Hall  v.  Nottingham,  1  Exch.  D.  1;  45  L.  J.  Exch.  50. 


20  NATURE   OF  EASEMENTS. 

spect  of  the  tin  mines  ;  as,  for  instance,  in  the  case  of  Carlyon 
V.  Lovering,"  where  a  customary  right  is  alleged  in  the  eighth 
plea,  that  tinners  and  miners  within  the  Stannaries  of  Corn- 
wall, lawfully  working  and  mining  tin  and  tin  ore  from  any 
tin  mine  or  tin  work  within  the  said  Stannaries,  situated 
upon  or  near  to  a  stream  of  water  running  or  flowing  by  or 
through  such  tin  mine  or  tin  work,  should  have  and  enjoy  the 
right  of  washing  away  in,  with,  and  by  means  of,  such  stream 
of  water,  where  the  same  flowed  by  or  through  such  tin  mine, 
or  tin  work,  all  or  any  part  of  the  sand,  stones,  rubble,  and 
other  stuff  which  should  become  or  be  dislodged  or  severed  in 
the  course  of  so  working  the  said  tin  mine  and  tin  ore,  and  of 
casting  and  throwing  from  and  out  of  the  said  tin  mine  or  tin 
work  all  or  any  part  of  the  same  sand,  stones,  rubble,  and 
other  stuff  into  the  stream  where  the  same  flowed  by  or 
through  the  tin  mine  or  tin  work,  and  of  having  the  same 
washed  and  carried  away  from  the  tin  mine  or  tin  work  by 
the  flow  or  the  stream  down  the  course  of  the  stream  to  the 
sea ;  and  there  can  be  no  doubt  but  that  this  right,  although 
claimed  under  a  custom,  is  truly  an  easement,"  and  the  plea 
was  held  to  disclose  a  lawful  and  valid  custom.  In  the  case 
of  Gaved  v.  Martyn,""  also,  a  custom  was  alleged  to  exist  in 
Cornwall,  that  tin-streamers  have  the  free  use  of  the  water 
over  the  whole  of  the  district  within  their  tin-bounds,  and 
they  claim  the  right  not  only  to  use  the  water,  but  to  divert 
it  into  other  streams.  This  custom  was  much  discussed  in 
the  case  of  Ivimey  v.  Stocker  ;  ^  but  in  that  case  Lord  Cran- 
worth,  C,  is  reported  to  have  thought  that  the  right  to  divert 
streams  to  mines  must  after  long  use  be  presumed  to  have  been 
granted,  and  granted  not  to  the  tin-bounders,  but  to  the  owner 
of  the  soil  under  which  the  mines  are  situated,  so  that  he  ap- 
pears to  reduce  the  right  of  diversion  to  an  easement  acquired 
by  the  landowner  by  prescription,  and  to  ignore  the  customary 
right  of  the  tin-bounders.     Possibly  the  decision  might  have 

«  1  H.  &N.  784;  26  L.  J.  Exch.  251. 

"  See  Wright  v.  Williams,  1  M.  &  W.  77;  5  L.  J.  N.  S.  Exch.  107. 

""  34  L.  J.  C.  P.  at  p.  354  ;  19  C.  B.  N.  S.  732. 

^  L.  R.  1  Ch.  App.  396;  35  L.  J.  Ch.  467. 


EASEMENTS   GENERALLY.  21 

been  different  if  the  diversion  bad  been  quite  recent,  for  in 
that  event  no  question  of  prescriptive  title  could  have  been 
raised. 

Besides  these  and  other  cases  in  which  easements  claimed 
under  and  by  virtue  of  customs  are  mentioned,  this  method  of 
acquisition  is  distinctly  recognized  in  the  second  section  of  the 
Prescription  Act,  which  says  :  "  And  be  it  further  enacted, 
that  no  claim  which  may  be  lawfully  made  at  the  common  law 
hy  custom,  prescription,  or  grant,  to  any  way  or  other  ease- 
ment," &c.  ;  and  the  result,  therefore,  is,  that  although  a  cus- 
tom is  not  itself  an  easement,  and  although  the  customary 
right  of  each  individual  of  the  class  entitled  to  the  benefit  of 
the  custom  is  not  an  easement,  yet  that,  if  a  custom  exists 
under  which  individuals  of  a  class  may  obtain  independent 
rights  in  respect  of  their  land,  which  would  be  easements  if 
acquired  by  grant  or  prescription,  those  rights  are  neverthe- 
less easements  though  acquired  under  the  custom. 

It  must  be  remarked  that  the  law  will  not  recognize  any 
new  species  of  easements,  for  "  a  new  species  of  in-   ^^ 
corporeal  hereditament  cannot  be  created  at  the  will   species  of 
and  pleasure  of  an  individual  owner  of  an  estate  :  he 

must  be  contented  to  take  the  sort  of  estate  and  the  right  to   S"-vu^  \»d^-' 
dispose  of  it  as  he  finds  the  law  settled  by  decisions  or  con- 
trolled by  act  of  parliament."  ^ 

This  rule  of  law  appears  to  have  been  first  laid  down  by 
Lord  Brougham,  C,  in  the  case  of  Keppel  v.  Bailey,^  in  which 
he  said  :  "  There  are  certain  known  incidents  to  property  and 
its  enjoyment ;  among  others  certain  burdens  wherewith  it 
may  be  affected,  or  rights  which  may  be  created  and  enjoyed 
over  it  by  parties  other  than  the  owner  ;  all  which  incidents 

are  recognized  by  the  law So  in  respect  of  enjoyment, 

one  may  have  the  possession  and  the  fee  simple,  and  another 
may  have  a  rent  issuing  out  of  it,  or  the  tithes  of  its  produce, 
or  an  easement,  as  a  right  of  way  upon  it  or  of  common  over 
it.     And  such  last  incorporeal  hereditament  may  be  annexed 

2' Per  Pollock,  C.  B.,  in  judgment  in  Hill  v.  Tupper,  2  H.  &  C.  121; 
32  L.  J.  Exch.  217.     See  note  (m),  post^  p.  i4.-;  ■ 
^  2  Myl.  &  K.  at  p.  535. 


22  NATURE   OF   EASEMENTS. 

to  an  estate  which  is  wholly  unconnected  with  the  estate  af- 
fected by  the  easement,  although  both  estates  were  originally 
united  in  the  same  owner,  and  one  of  them  was  afterwards 
granted  by  him  with  the  benefit,  while  the  other  was  left  sub- 
ject to  the  burden.  All  these  kinds  of  property,  however  — 
all  these  holdings  —  are  well  known  to  the  law  and  familiarly 
dealt  with  by  its  principles.  But  it  must  not,  therefore,  be 
supposed  that  incidents  of  a  novel  kind  can  be  devised  and  at- 
tached to  property  at  the  fancy  or  caprice  of  any  owner.  It  is 
clearly  inconvenient,  both  to  the  science  of  the  law  and  to  the 
public  weal,  that  such  a  latitude  should  be  given.  There  can 
be  no  harm  in  allowing  the  fullest  latitude  to  men  in  binding 
themselves  and  their  representatives  —  that  is,  their  assets 
real  and  personal  —  to  answer  in  damages  for  breach  of  their 
obligations.  This  tends  to  no  mischief,  and  is  a  reasonable 
liberty  to  bestow ;  but  great  detriment  would  arise,  and  much 
confusion  of  rights,  if  parties  were  allowed  to  invent  new 
modes  of  holding  and  enjoying  real  property,  and  to  impress 
upon  their  lands  and  tenements  a  peculiar  character  which 
should  follow  them  into  all  hands  however  remote." 

The  above  passage  from  Lord  Brougham's  judgment  has 
been  quoted  at  length,  as  that  judgment  has  been  cited  with 
approbation  and  followed  in  recent  cases  ;  "  but  it  must  be  re- 
membered that  although  any  burden  of  a  new  species  which 
the  owner  thinks  proper  to  impose  on  his  land  is  not  an  ease- 
ment which  can  be  made  appurtenant  to  land,  yet  that  such 
an  obligation  is  perfectly  valid  as  between  the  grantor  and 
grantee  of  the  right,  and  if  the  grantee  is  disturbed  in  his  en- 
joyment by  the  grantor,  the  law  will  afford  him  ample  remedy 
by  action  on  covenant  for  the  injury  ;  and  in  the  event  also 
of  his  being  disturbed  by  a  stranger,  he  may  sue  for  such  dis- 
turbance in  the  name  of  the  grantor.  The  cases  already  cited 
are  authorities  to  that  effect,  and  the  principle  was  very  clearly 
expressed  by  Mellish,  L.  J.,  in  a  recent  case  reported  since  the 
first  edition  of  this  work  was  published.  The  decision  was  di- 
rected to  a  different  point,  but  incidentally  the  lord  justice 

«  Ackroyd  v.  Smith,  10  C.  B.  164  ;  19  L.  J.  C.  P.  315;  Hill  v.  Tupper, 
2  H.  &  C.  121;  32  L.  J.  Exch.  217. 


EASEMENTS   GENERALLY.  23 

said,  that,  in  his  opinion,  there  was  a  distinction  between  the 
case  under  consideration,  which  was  a  case  relating  to  a  right 
to  light  granted  by  deed,  and  the  cases  referred  to  by  the 
master  of  the  rolls,  whose  decision  was  then  under  appeal. 
In  those  cases  there  was  no  grant  at  law  at  all,  but  the  right 
had  merely  come  into  existence  by  covenant.  "  Where,"  he 
said,  "  the  right  comes. into  existence  by  covenant,  the  burden 
does  not  run  at  law  with  the  servient  tenement  at  all ;  but  a 
court  of  equity  says,  that  a  person  who  takes  it  with  notice 
that  such  a  covenant  has  been  made,  shall  be  compelled  to  ob- 
serve it.  That  is  the  ordinary  case,  where  there  is  such  a 
covenant  as  I  before  referred  to,  that  a  person  shall  have  an 
uninterrupted  view  from  his  drawing-room  window,  because 
the  law  will  not  allow  the  owner  of  land  to  attach  an  unusual 
and  unknown  covenant  to  the  land,  so  that  a  man  who  buys 
the  property  in  the  market  without  knowing  that  it  is  subject 
to  any  such  burden,  would  find  that  some  previous  owner  had 
professed  to  bind  all  subsequent  owners  by  an  obligation  not 
to  obstruct  the  view  which  somebody  else  would  have  from  the 
windows  of  his  house.  In  such  a  case  as  that,  though  the 
man  who  makes  the  covenant  is  liable,  yet  those  claiming 
under  him  are  not  liable  at  law  ;  but  the  court  of  equity  says, 
that  if  a  purchaser  has  taken  the  land  with  notice  of  that  con- 
tract, it  is  contrary  to  equity  that  he  should  take  advantage  of 
that  rule  of  law  to  violate  the  covenant.  But  in  the  case  of  a 
grant  of  a  well  known  easement,  such  as  a  right  to  light,  or  a 
watercourse,  or  a  right  of  way,  or  any  of  the  numerous  ease- 
ments which  are  well  known  to  the  law,  when  they  are  once 
validly  created,  the  right  passes  at  law,  and  the  owner  and 
occupier  of  the  dominant  tenement  may  maintain  an  action 
against  the  occupier  of  the  servient  tenement  if  the  right  is 
interfered  with ;  and  in  all  such  cases  the  rule  in  equity  ought 
to  follow  the  law."  * 

It  has  already  been  said  that  natural  rights  are  inherent  in 
land,  but  that  easements  can  be  created  only  by  the  Easements 
act  of  man.  When  easements  have  been  created  it  natural  *° 
frequently  happens  that  they  are  at  variance  with    rights. 

*  Leech  v.  Schweder,  L.  R.  9  Ch.  App.  at  p.  475;  43  L.  J.  Ch.  at  p.  491. 


24  NATURE   OF   EASEMENTS. 

natural  rights,  and  the  question  may  be  asked,  which  of  the 
rio'hts  is  in  such  case  to  give  phice  to  the  other.  The  effect 
of  the  creation  of  an  adverse  easement  is  to  cause  suspension 
of  the  natural  rights  during  its  existence,  and  if  the  ease- 
ment is  at  any  time  extinguished  the  natural  rights  instantly 
revive.*^  It  may  further  be  observed  that  it  is  not  in  the  nat- 
ure of  natural  rights  to  be  inconsistent  one  with  another,  for 
the  natural  rights  of  one  person  are  so  limited  by  the  natural 
rights  of  others,  that  where  the  rights  of  one  begin  the  rights 
of  the  others  end.  Thus,  if  one  person  has  a  natural  right  to 
the  flow  of  the  water  of  a  stream,  his  riglit  is  not  to  the  un- 
interrupted flow  of  all  the  water,  but  of  all  the  water  minus 
that  quantity  lawfully  used  by  other  persons  higher  up  the 
stream,  for  by  virtue  of  their  natural  right  they  may  use  t^ 
reasonable  quantity  of  the  water  as  it  flows  by  their  land ;  so, 
also,  the  natural  right  of  a  landowner  to  use  the  water  of  a 
stream  is  not  a  riglit  to  use  any  quantity  he  thinks  proper,  but 
his  right  is  so  limited  by  the  natural  right  of  other  persons  to 
the  uninterrupted  flow  of  the  water,  that  he  may  not  by  such 
user  cause  the  latter  material  and  sensible  injury.''  To  this  it 
may  be  added  that  natural  rights  cannot  be  affected  by  the 
enjoyment  of  natural  rights  by  another  person  ;  thus,  if  a 
privilege  in  the  nature  of  an  easement  is  used  adversely  to  a 
natural  right,  the  natural  right  is  curtailed  or  entirely  sus- 
pended when  an  easement  is  acquired  ;  but  if  a  natural  right 
is  used,  such  user,  however  long  continued,  would  not  cause 
the  imposition  of  any  new  or  increased  burden  on  the  servient 
tenement,  or  in  any  way  affect  the  natural  rights  of  the  ser- 
vient owner.' 

Inconsistent  easements  cannot  coexist.    When  an  easement 
-        .        has  been  created  the  rights  of  the  servient  owner  are 

Inconsist-        .      .  '^ 

entease-       limited  by  that  easement,   and  he  cannot  grant  a 

ni6nts*  >  .  .  .  ,     . 

right  to  a  third  person  inconsistent  with  the  existing 
easement.     Neither  can  an  easement  which  would  be  incon- 

<^  Bealey  v.  Shaw,  6  East,  209;  Wright  v.   Howard,   1   Sim.  &  St.  190; 
•1  L.  J.  Ch.  94;  Sampson  v.  Iloddinott,  1  C.  B.  N.  S.  590. 
''  Wright  t'.  Howard,  1  Sim.  &  St.  190;  1  L.  J.  Ch.  94. 
^  Per  Cresswell,  J.,  iu  Sampson  v.  Hoddinott,  1  C.  B.  N.  S.  at  p.  611. 


EASEMENTS   GENERALLY.  25 

sistent  with  an  existing  easement  of  another  person  be  ac- 
quired by  prescription,  for  a  right  can  be  acquired  by  prescrip- 
tion only  when  a  grant  can  be  presumed  ;  but  independently 
of  this,  another  reason  has  been  given,  namely,  that  "  when 
a  man  has  a  lawful  easement  or  profit  by  prescription  from 
time  whereof,  &c.,  another  custom,  which  is  also  from  time 
whereof,  &c.,  cannot  take  it  away,  for  the  one  custom  is  as 
ancient  as  the  other  ;  as  if  one  has  a  way  over  the  land  of  A. 
to  his  freehold  by  prescription  from  time  whereof,  &c.,  A.  can- 
not allege  a  prescription  or  custom  to  stop  the  way."-'^  Prob- 
ably if  user,  inconsistent  with  an  existing  easement,  whether 
acquired  by  express  grant  or  by  prescription,  were  submitted 
to  by  the  dominant  owner  for  a  period  of  sufficient  duration 
to  establish  an  adverse  prescriptive  right,  the  law  would  pre- 
sume that  the  original  easement  had  been  released  and  extin- 
guished, and  a  right  to  the  new  and  inconsistent  easement 
might  be  upheld." 

But   although   inconsistent  easements   cannot  coexist,  one 
easement  of  a   character  inconsistent  with  another   g^^^^j.^^. 
may  be  created  subordinate  to  the  latter,  and  in  that   nate  ease- 

,  •    ,  m^  -J!  ments. 

manner  the  two  may  coexist.  Inus,  ii  one  man 
has  a  right  to  the  uninterrupted  flow  of  the  water  of  a  stream 
to  his  mill,  another  may  have  a  right  to  divert  the  water  when 
it  is  not  required  for  the  mill.''  So,  also,  easements  may  be 
acquired  in  streams  of  water  flowing  near  tin  mines  in  Corn- 
wall, where  the  custom  of  tin-bounding  prevails  ;  but  such 
easements  are  subordinate  to  the  i-ights  of  the  tin-bounders 
under  the  custom  of  the  count3^* 

There  remains  but  one  class  of  easements  to  be  noticed  in 
this  place,  and  that  class  is  Easeynents  of  Necessity.   ~^^^^^^  ^^ 
It  frequently  happens  that  property  is  acquired  in   of  Neces- 
such  a  situation  that,  unless  the  owner  is  permitted        '   . 

/  Aldred's  case,  9  Coke,  58. 

»  Regina  v.  Chorley,  12  Q.  B.  515. 

''  Rolle  V.  Whyte,  L.  R.  3  Q.  B.  at  p.  302  ;  37  L.  J.  Q.  B,  at  p.  116; 
Blatchford  v.  Mayor  of  Plymouth,  3  Bing.  N.  C.  691 ;  6  L.  J,  N.  S.  C.  P. 
217. 

'  Gaved  v.  Martyn,  31  L.  J.  C.  P.  353 ;  19  C.  B.  N.  S.  732. 


26  NATURE   OF  EASEMENTS. 

to  make  use  of  liis  neighbor's  land,  the  property  is  inacces- 
sible and  worthless.  The  most  common  instance  of  this  kind 
of  easements  occurs  when  a  piece  of  land  is  wholly  surrounded 
by  the  ground  of  other  persons,  so  that  unless  the  owner  were 
permitted  to  pass  over  the  surrounding  ground,  he  would  have 
no  means  of  getting  to  his  own  land  and  it  would  be  worth- 
less. In  this  and  similar  cases  the  law  generally  steps  in, 
and  the  landowner  becomes  entitled  to  an  easement  of  necess- 
ity.^ By  this  means  an  owner  of  mines  becomes  entitled,  if 
there  is  no  other  way  by  which  he  can  gain  the  minerals, 
to  dig  through  the  surface  land  for  that  purpose,  and  when 
gained  to  carry  the  minerals  away  over  that  land  ;  ^  and  in 
like  manner  it  has  been  held  that  if  a  contract  be  made  with 
the  owner  of  a  steam-engine  for  liberty  to  use  the  engine  to 
work  a  machine  set  up  in  a  room  belonging  to  the  owner  of 
the  engine,  a  right  is  also  obtained  to  stand  in  the  room  to 
work  the  machine,  for  otherwise  the  contract  would  be  nuga- 
tory. It  will,  however,  be  seen  hereafter,  that  it  is  not  in 
every  case  in  which  property  is  inaccessible  that  the  law 
affords  the  owner  an  easement  of  necessity ;  for  such  ease- 
ments, to  come  into  existence,  must  arise  under  an  implied 
grant  of  the  right,  and  if  a  grant  of  the  easement  cannot  be 
presumed,  no  easement  of  necessity  is  given  by  the  law. 

With  reference  to  easements  of  necessity,  it  is  an  important 

„.  question  whether  they  can  be  allowed  to  a  land- 

when  ease-    ^  ^    "^ 

mentsof       owner  only  when  his  land  would  be  utterly  useless 

DCCG^sitV  • 

are  per-  without  them,  or  whether  they  are  to  be  given  him 
'"'"®  ■  when  it  is  merely  a  matter  of  great  moment  to  him 
to  have  them,  though  he  might  use  his  land  with  more  or 
less  advantage  without  them.^  Opinion  on  this  has  varied 
from  time  to  time ;  but  though  there  is  an  expression  of  opin- 

i  Dand  v.  Kingscote,  6  M.  &  W.  174 ;  9  L.  J.  N.  S.  Exch.  279;  Gayford 
V.  Moffatt,  L.  R.  4  Ch.  App.'l33;  Clark  v.  Cogge,  Cro.  Jac.  170. 

*  Rogers  V.  Taylor,  1  H.  &  N.  706;  26  L.  J.  Exch.  203;  Goold  v.  Great 
Western  Deep  Coal  Company,  12  L.  T.  842;  13  L.  T.  109;  2  De  G.,  J.  & 
S.  600;  Rowbotham  v.  Wilson,  8  H.  L.  C.  348  ;  Hext  v.  Gill,  L.  R.  7  Ch. 
App.  699;  41  L.J.  Ch.  761. 

'  Rex  V.  Inhabitants  of  Mellor,  2  East,  188. 

^  See,  further,  fost. 


EASEMENTS   GENERALLY.  27 

ion  in  a  recent  case  which  tends  the  other  way,  the  question 
may  be  asked,  whether  it  is  not  reasonable  and  proper  to  limit 
the  existence  of  these  rights  to  cases  in  which  there  is  an  ab- 
solute necessity,  and  to  permit  them  in  no  other  ?  It  must 
be  borne  in  mind  how  detrimental  it  generally  is  to  an  estate 
to  be  burdened  with  an  easement ;  what  a  nuisance  it  is  to  an 
owner  of  land  to  have  another  person  walking  at  his  pleas- 
ure over  a  field,  and  how  such  a  right  may  prevent  building 
on  the  land,  or  using  it  in  many  of  the  ways  the  owner  may 
desire.  It  must  be  borne  in  mind,  also,  that  though  it  is 
requisite  that  a  grant  should  be  capable  of  being  presumed 
in  every  case  of  an  easement  of  necessity,  yet  these  rights 
invariably  arise  when  it  is  manifest  that  neither  grantor  nor 
grantee  had  any  thought  whatever  about  the  subject.  Does 
it  not  therefore  seem  unreasonable  that  easements  of  necess- 
ity should  be  allowed,  and  be  presumed  to  be  granted  in 
cases  in  which  there  is  no  absolute  necessity  for  their  exist- 
ence ?  The  recent  case  alluded  to  above  is  Watts  v.  Kelson,"* 
and  the  easement  was  a  right  to  a  flow  of  water  through 
a  pipe.  There  had  been  a  severance  of  an  estate  by  sale  of 
the  dominant  tenement,  and  before  that  severance  the  owner 
had  used  the  pipe  for  conveying  water  from  the  servient 
to  the  dominant  part  of  the  estate ;  but  it  appeared  that  there 
were  other  supplies  of  water  to  the  dominant  part  of  the 
estate  than  that  which  was  obtained  by  means  of  the  pipe, 
though,  possibly,  the  water  so  obtained  was  not  so  pure.  It  is 
only  right,  however,  to  observe  that  the  case  really  turned 
upon  the  words  used  in  the  conveyance  of  the  dominant  tene- 
ment to  the  purchaser,  but  the  court  said :  "  It  was  ob- 
jected before  us,  on  the  part  of  the  defendant,  that  on  sever- 
ance of  two  tenements  no  easement  will  pass  by  an  implied 
grant  except  one  which  is  necessary  for  the  use  of  the  tene- 
ment conveyed,  and  that  the  easement  in  question  was  not 
necessary.  We  think  that  the  watercourse  was  necessary  for 
the  use  of  the  tenement  conveyed.  It  was,  at  the  time  of  the 
conveyance,  the  existing  mode  by  which  the  premises  con- 
veyed were  supplied  with  water  ;  and  we  think  it  is  no  an- 
"'■40  L.  J.  Ch.  at  p.  129  ;  L.  R.  6  Ch.  App.  at  p.  175. 


"% 


28  NATURE   OF  EASEMENTS. 

swer  that  if  this  supply  were  cut  off  some  other  supply  might 
possibly  be  obttiined.  We  think  it  is  proved  on  the  evidence 
that  no  other  supply  of  water  equally  pure  could  have  been 
obtained."  The  result,  however,  of  the  earlier  decisions, 
seems  to  have  been  that  easements  of  necessity  could  exist 
only  when  there  was  an  absolute  necessity  for  them  to  ren- 
der the  ownership  of  land  benejScial ;  "  but  still  it  is  right  to 
notice  that  in  Morris  v.  Edgington,"  JNIansfield,  C.  J.,  ex- 
pressed an  opinion  that  it  would  not  be  a  great  stretch  to 
call  that  a  necessary  way,  without  which  the  most  convenient 
and  reasonable  mode  of  enjoying  the  premises  could  not  be 
had. 

Sect.  2.  —  On  the  Nature  of  Particular  Easements. 

The  first  section  of  this  chapter  was  devoted  to  the  consider- 
ation of  the  Nature  of  Easements  generally ;  that  is,  those 
rules  and  principles  of  law  relating  to  their  nature  which  are 
applicable  to  easements  of  all  kinds  ;  and  it  was  also  attempted 
fully  to  explain  what  was  meant  by  the  word  "  Easement," 
and  to  point  out  the  distinction  between  Easements,  commonly 
so  called,  and  that  other  class  of  easements  generally  termed 
Natural  Rights.  Besides  these  rules  and  principles  of  law, 
however,  there  are  some  which  relate  to  particular  easements 
only ;  and  these  it  is  purposed  to  discuss  in  the  present  sec- 
tion. 

AIR. 

The  first  subject  to  which'  attention  is  now  to  be  directed  is 

_.  , ,  .  the  air,  for  there  are  two  kinds  of  rights  in  connec- 
Rights  in  .  .  ,  ,  ° 

connection    tion  with  the  air  to  which  an  owner  of  land  may  at 
law  be  entitled.     The  first  kind  is  rights  which  have 
reference  to  the  free  and  uninterrupted  passage  of  air,  and  the 
second  is  those  which  have  reference  to  purity  of  air. 

Light  and  air  in  many  particulars  resemble  each  other,  and 
Free  pas-  the  rules  of  law  regarding  the  right  to  free  passage 
sage  0  air.    ^j  lig^t  and  air  are  identical,  except  in  the  case  of 

"  Holmes  v.  Goring,  2  Bing.  76  ;  2  L.  J.  C.  P.  134  ;  Proctor  v.  Hodgson, 
10  Exdi.  824;  24  L.  J.  Exch.  195. 
°  3  Taunt,  at  j).  31. 


AIR.  29 

certain  rules  relating  to  light  which  were  established  by  the 
Prescription  Act ;  for  that  statute  contains  a  clause  specially 
relating  to  the  acquisition  of  rights  to  uninterrupted  passage 
of  light,  but  makes  no  provision  for  the  acquisition  of  riglits 
to  uninterrupted  passage  of  air.  For  the  purpose  of  the  pres- 
ent chapter  it  will  be  more  convenient  to  discuss  the  nature 
of  the  rights  to  free  passage  of  light  and  air  together,  and  the 
reader  is,  therefore,  referred  to  the  subject  "  Light  "  for  this 
purpose.^ 

Every  owner  of  land  has  a  natural  and  common  law  right 
that  the  air  which  passes  to  his  land  shall  not  be  pol-    p^J.Jty  of 
luted  by  other  persons,  and  any  person  who,  without    »""• 
an  acquired  right,  pollutes  the  air  which  passes  to  his  land  is 
guilty  of  a  wrongful  act.'' 

The  expression  "  an  acquired  right "  is  here  used  because  a 
right  may  be  acquired,  as  will  be  shown  hereafter.    Right  to 
to  pollute  the  air  which  passes  from  the  land  of  one   P"^'*^*'®  ^^'■• 
person  to  that  of  another.     Such  a  right,  when  acquired,  is 
an  easement.'' 

The  natural  right  to  purity  of  air,  like  all  other  rights  of 
that  nature,  is,  to  a  certain  extent,  limited  by  the  Limit  of 
natural  rights  of  other  persons.  There  is  no  inflex-  rJvh"  to"pul 
ible  rule  of  law  that  a  landowner  is  entitled  to  have  rity  of  air. 
the  air  which  naturally  comes  to  him  absolutely  and  entii'ely 
free  from  pollution,  for  such  a  rule  would  altogether  put  an 
end  to  many  of  the  necessary  and  ordinary  pursuits  of  life  by 
the  exercise  of  which  the  air  is,  to  some  extent,  polluted. 
The  air  is  provided  for  the  common  good  of  mankind,  to  be 
used  by  each  person  to  whom  it  comes  for  his  own  benefit,  and 
the  natural  right  of  each  man  to  purity  of  air  is  therefore 
limited  by  the  natural  right  of  all  other  persons  to  use  the  air 
for  their  own  purposes,  although  by  such  user  it  is  rendered 
to  some  degree  less  pure  than  it  otherwise  would  have  been. 

-P  Post,  p.  31.  Though  a  right  to  uninterrupted  passage  of  air  to  a 
■window  may  be  acquired,  the  law  will  not  recognize  a  prescriptive  right 
of  uninterrupted  passage  of  air  to  a  windnaill ;  post,  chapter  II. 

9  Bliss  V.  Hall,  4  Bing.  N.  C.  183.  See  Commonwealth  v.  Upton,  6  Gray, 
473. 

*■  Flight  V.  Thomas.  10  A.  &  E.  590. 


30  NATURE   OF   EASEMENTS. 

The  right  to  purity  of  air  is  well  described  by  Kniglit  Bruce, 
V.  C,  in  Walter  v.  Selfe/  in  which  case  an  injunction  was 
sought  to  restrain  brick-burning  and  the  consequent  pollution 
of  the  air.  It  was  decided  that  the  occupier  of  a  house  is  en- 
titled to  an  untainted  and  unpolluted  stream  of  air  for  the 
necessary  supply  and  reasonable  use  of  himself  and  his  famil)'", 
"  meaning,"  said  the  vice  chancellor,  "  by  untainted  and  un- 
polluted air,  not  necessarily  air  as  fresh,  free,  and  pure  as  at 
the  time  of  building  the  plaintiff's  house  the  atmosphere  then 
was,  but  air  not  rendered  to  an  important  degree  less  compat- 
ible, or  at  least  not  rendered  incompatible,  with  the  physical 
comfort  of  human  existence  —  a  phrase  to  be  understood,  of 
course,  with  reference  to  the  climate  and  habits  of  England." 
So,  also,  in  delivering  the  judgment  of  the  Court  of  Exchequer, 
in  Wood  V.  Waud,'  and  speaking  of  the  diminution  of  the 
water  of  a  stream  by  the  ordinary  use  of  the  persons  living  on 
its  banks.  Pollock,  C.  B.,  referring  to  pollution  of  air,  said : 
"  And  it  may  be  conceived  that  if  a  field  be  covered  with 
houses,  the  ordinary  use  by  the  inhabitants  might  sensibly 
diminish  the  stream  ;  yet  no  action  would,  we  apprehend,  lie 
any  more  than  if  the  air  was  rendered  less  pure  and  healthy 
by  the  increase  of  inhabitants  in  the  neighborhood,  and  by 
the  smoke  issuing  from  the  chimneys  of  an  increased  number 
of  houses.  But,  on  the  other  hand,  as  the  establishment  of  a 
manufacture  rendering  the  air  sensibly  impure  by  emitting 
noxious  gases  would  be  actionable,  so  it  would  be  if  it  rendered 
the  water  less  pure  by  the  admixture  of  noxious  substances." 
It  has  been  much  debated  whether  the  natural  right  to  pu- 

rity  of  air  is  not  subject  to  the  qualification  that  all 
of  air  when    persous  may  lawfully  poUute  the  air  if  the  cause  of 

the  pollution  is  the  execution  of  any  work  essential 
for  business  or  for  the  due  enjoyment  of  life,  provided  the 
work  is  carried  on  in  a  reasonable  and  proper  manner,  and  in 
a  convenient  and  proper  place,  or  if  the  exercise  of  a  trade  is 
a  reasonable  use  by  a  person  of  his  own  land."     This  subject 

'  20  L.  J.  Ch.  at  p.  434;  4  De  G.  &  Sm.  315. 

'  3  Exch.  at  p.  781  ;  18  L.  J.  Excb.  315.    See  Dana  v.  Valentine,  5  Met.  8. 

"  Hole  V.  Barlow,  4  C.  B.  N.  S.  334  ;  27  L.  J.  C.  P.  207  ;  Cavey  v.  Lid- 


LIGHT.  31 

relates  not  so  much  to  the  nature  of  the  right  to  purity  of  air 
as  to  the  disturbance  of  that  right,  and  the  circumstances  un- 
der which  such  disturbance  is  justifiable.  The  subject  will, 
therefore,  be  treated  in  another  place." 

LIGHT. 

It  has  already  been  said  that  light  and  air  resemble  each 
other  in  many  particulars,  and  that  the  rules  of  law 
regarding  the  right  to  free  passage  of  light  and  air  and  water 
are  for  the  most  part  identical.  Air  and  light  are  ^°'"P'*'"^'^- 
similar  in  many  respects  —  they  are  provisions  of  nature  for 
the  good  of  all  mankind  alike,  and  every  man  has  a  natural 
right  to  use  and  enjoy  them  as  he  thinks  proper,  provided  he 
does  not  cause  unjustifiable  damage  to  other  persons.  Light 
and  air  possess  the  same  wandering,  unstable  character,  and  in 
that  respect  resemble  water,  and,  like  water,  are  the  property 
of  no  one  ;  water,  however,  is  capable  of  being  confined  for 
use,  and,  while  confined,  it  becomes  the  subject  of  property ; 
but  this  is  not  the  case  with  light  and  air.  As  is  the  case 
with  the  water  of  a  stream,  there  is  a  natural  right  to  the  use 
of  all  the  light  and  air  which  flows  naturally  to  land  ;  but  light 
and  air  differ  from  water  in  this,  that  whereas  the  natural 
right  to  the  flow  of  the  water  of  a  natural  stream  is  para- 
mount, and  no  man  is  justified  in  obstructing  tliat  water  or 
preventing  it  flowing  in  its  ordinary  course  to  the  land  of 
other  persons,  the  natural  right  to  the  flow  of  light  and  air  is 
subordinate  to  the  right,  incident  to  property,  which  every 
person  has  to  build  on  his  own  land  ;  if,  therefore,  a  land- 
owner without  right  (for  a  right  may  be  acquired)  obstructs 
the  water  of  a  natural  stream,  he  is  liable  to  an  action  for 
damages  ;  but  if  he,  in  the  exercise  of  his  right  to  build,  ob- 
structs the  light  and  air,  and  prevents  them  passing  to  his 
neighbor,  he  is  not  guilty  of  any  wrongful  act,  and  is  not  re- 
sponsible for  injury  caused,  unless  his  neighbor  has  acquired  a 

better,  13  C.  B.  N.  S.  470;  32  L.  J.  C.  P.  104;  Bamford  v.  Turnley,  3  B. 
&  S.  66;  31  L.  J.  Q.  B.  286  ;  St.  Helen's  Smelting  Company  v.  Tipping, 
11  H.  L.  C.  642  ;  35  L.  J.  Q.  B.  66. 
"  See^jos/,  chapter  IV. 


32  NATURE   OF   EASEMENTS. 

rio-lit  that  the  liji'ht  and  air  shall  not  be  obstructed.  Water 
may  not  be  obstructed  unless  the  obstructor  has  acquired  a 
rio-ht  to  obstruct  it ;  light  and  air  may  be  obstructed,  unless 
the  person  obstructed  has  acquired  a  right  to  uninterrupted 
enjo^'uient. 

It  is  the  undoubted  right  of  every  man  who  owns  a  house 
or  other  buildiug  to  open  any  windows  he  pleases  for 
open  win-  the  purposc  of  admitting  the  light  and  air  which  will 
adm1/ii<'^ht  naturally  enter  ;  and  even  though  his  house  imme- 
and  air.  diately  adjoins  the  land  of  another  person,  no  legal 
injury  is  caused  by  him  if  he  opens  windows  overlooking  that 
land  ;  "^  but,  as  was  remarked  above,  the  natural  right  to  the 
reception  of  light  and  air  is  subordinate  to  the  right,  incident 
to  property,  which  every  person  has  to  build  on  his  own  land  ; 
if,  therefore,  a  householder  open  a  new  window  which,  by  dis- 
turbiug  the  privacy  of  a  neighbor  or  otherwise,  is  a  nuisance 
to  him,  or  if  the  latter  is  unwilling  that  a  right  to  have  the 
light  uninterrupted  should  be  acquired  by  the  owner  of  the 
house  (for  such  a  right  would  be  acquired  after  the  lapse  of 
twenty  years),  he  may  exercise  his  superior  right  of  building 
on  his  own  ground,  notwithstanding  the  erection  totally  de- 
prives the  householder  of  the  light  and  air  whicli  would  other- 
wise enter  the  new  window.-^  "  Before  dealing  with  the  pres- 
ent appeal,"  said  Lord  Westbury,  C,  in  Tapling  v.  Jones,^ 
"  it  may  be  useful  to  point  out  some  expressions  which  are 
found  in  the  decided  cases,  and  which  seem  to  have  a  tendency 
to  mislead;  one  of  these  expressions  is  the  phrase  'right  to 
obstruct.'  If  my  adjoining  neighbor  builds  upon  his  land  and 
opens  numerous  windows  which  look  over  my  gardens  or  my 
pleasure-grounds,  I  do  not  acquire  from  this  act  of  my  neigh- 
bor auy  new  or  other  right  than  I  before  possessed.  I  have 
simply  the  same  right  of  building  or  raising  any  erection  I 

^  Per  Cresswell,  J.,  in  Truscott  v.  Merchant  Taylors'  Company,  11 
Exch.  at  p.  8G4;  25  L.  J.  Exch.  at  p.  176;  Mahan  v.  Brown,  13  Wend. 
261.     See  Potts  v.  Smith,  L.  R.  6  Eq.  318. 

^  Per  Cresswell,  J.,  in  Truscott  v.  Merchant  Taylors'  Company,  11 
Exch.  at  p.  864;  25  L.  J.  Exch.  at  p.  176  ;  Frewen  v.  Phillips,  11  C.  B. 
N.  S.  449  ;  30  L.  J.  C.  P.  356. 

''  11  H.  L.  C.  at  p.  305  ;  34  L.  J.  C.  P.  at  p.  345. 


LIGHT.  -  33 

please  on  my  own  land,  unless  that  right  has  been  by  some 
antecedent  matter  either  lost  or  impaired,  and  I  gain  no  new 
or  enlarged  right  by  the  act  of  my  neighbor."  The  erection 
of  a  wall  or  other  obstacle  is  indeed  the  only  remedy  availa- 
ble to  a  landowner,  if  he  is  annoyed  by  the  opening  of  new 
windows  overlooking  his  ground  ;  he  can  maintain  no  ac- 
tion,i  nor  can  he  obtain  other  relief  at  law  or  in  equity ;  for 
disturbance  of  privacy  is  not  an  injury  which  the  law  will 
recognize.^  In  building  to  obstruct  new  windows,  however, 
a  landowner  must  be  careful  to  avoid  obstructing  ancient 
lights." 

Though  an  owner  of  a  house  or  other  building  acquires  no 
right  by  opening  a  new  window  to  have  the  light  Right  to 
and  air  which  would  naturally  enter  unobstructed  by  andVi'r^un- 
the  owner  of  the  adjoining  land,  still  the  law  suffers  obstructed. 
such  a  right  to  be  acquired  after  the  lapse  of  twenty  years. 
This  method  of  acquiring  a  right,  which  will  be  found  fully 
discussed  in  the  next  chapter,  varies  in  the  case  of  light  and  in 
the  case  of  air  ;  for  the  acquisition  of  a  right  to  light  by  pre- 
scription is  regulated  solely  by  the  statute  law,*  whereas  a 
prescriptive  right  to  have  air  unobstructed  can  be  acquired 
only  by  prescription  at  common  law. 

A  right  to  have  the  light  and  air  which  would  naturally  flow 
to  a  window  unobstructed  by  the  owner  of  adjoin-    Right  to 
ing  land,  whether  such  right  is  acquired  by  prescrip-    aj^r'^^s  an^ 
tion  or  otherwise,  is  an  easement.  easement. 

SUPPORT. 

The  next  subject  to  which  attention  is  directed  is  the  right 
to  support  for  land  and  buildings. 

Every  person  has  a  right  ex  jure  naturce  that  his  own  land 
shall  not  be  disturbed  by  the  removal  of  the  support  naturally 

1  Mahan  v.  Brown,  13  "Wend.  261. 

"  Re  Penny  and  the  South  Eastern  Railway  Company,  7  E.  &  B.  660; 
26  L.  J.  Q.  B.  225.  Per  Kindersley,  V.  C,  in  Turner  v.  Spooner,  1  Dr.  & 
Sm.  467  ;  30  L.  J.  Ch.  at  p.  803  ;  Chandler  v.  Thompson,  3  Camp.  80. 

"  See  post,  chapter  IV. 

''  Prescription  Act  (2  &  3  Wm.  IV.  c.  71),  s.  3.     See  post,  chapter  II. 
3 


34  NATURE    OF   EASEMENTS. 

rendered  by  tlie  subjacent  and  adjacent  soil.     It  is  evident  that 

if  land  or  mine  owners  were  at  liberty  to  excavate  without  re- 

irard    to    the  support   required   by   their    neighbor's 

Natural  »  i  i  -i  ->  •  i  i      • 

rigiit  'o  land,  the  neighbors  would  have  no  security  that  their 
Nonii  re-  ground  would  not  at  any  moment  be  rendered  use- 
bmidin's  ■^'^^^  ^^y  ^i^^^^ng  ^"^0  a  subjaccnt  or  adjacent  mine, 
on  the  Xhe  law,  therefore,  annexes  to  the  ownership  of  land 

a  natural  right  that  the  landowner  shall  be  entitled 
to  sufficient  support  for  his  ground  from  the  subjacent  and 
adjacent  soil.''  The  right  ex  jure  naturce  to  lateral  or  adja- 
cent support  was  determined  many  years  before  it  was  decided 
that  a  similar  right  existed  when  land  was  divided  horizon- 
tally ;  i.  e.  the  surface  belonging  to  one  person,  and  the  sub- 
jacent mines  to  another.  The  right  to  subjacent'  support 
was  first  determined  in  the  cases  of  Humphries  v.  Brogden,  in 
which  the  court,  after  considering  the  right  to  lateral  support, 
and  the  reasons  why  the  law  conferred  such  a  right,  held,  that 
for  similar  reasons  a  right  to  support  for  land  from  the  subja- 
cent minerals  was  also  given  by  law.  This  decision  has  been 
repeatedly  approved,  and  the  natural  right  to  subjacent  as  well 
as  adjacent  support  confirmed  by  subsequent  decisions.*^ 

The  natural  right  to  support,  then,  being  established  by 
Nature  of  hiw,  it  is  necessary  to  understand  what  is  the  exact 
right^to"'^'^  nature  of  this  right  —  that  is,  to  what  are  landown- 
support.  ers  really  by  law  entitled.  The  right  to  support  is 
not  a  right  to  a  particular  means  of  support  —  as,  for  instance, 
if  support  has  always  been  received  from  subjacent  coal,  that 

<^  Humphries  v.  Brogden,  12  Q.  B.  739;  20  L.  J.  Q.  B.  10;  Wyatt  v. 
Harrison,  3  B.  &  Ad.  871;  1  L.  J.  N.  S.  K.  B.  237  ;  Hunt  v.  Peake,  Johns. 
705  ;  29  L.  J.  Ch.  785  ;  Foley  v.  Wyeth,  2  Allen,  132  ;  Thurston  v.  Han- 
cock, 12  Mass.  220  (1815),  the  leading  case  in  America  on  this  point. 
Lasala  v.  Holbrook,  4  Paige,  169  ;  Radcliff  v.  Mayor  of  Brooklyn,  4  Comst. 
195;  Richardson  v.  Vermont  Central  Railroad,  25  Vt.  4G5;  Farrand  v. 
Marshall,  19  Barb.  380,  and  21  lb.  410;  No.  Trans.  Co.  v.  Chicago,  99 
U.  S.  635;   Stevenson  v.  Wallace,  27  Gratt.  77. 

''  Smart  v.  Morton,  5  E.  &  B.  30;  Harris  v.  Ryding,  5  M.  &  W.  60; 
Rowbotham  v.  Wilson,  8  H.  L.  C.  348.  See  Jones  v.  Wagner,  66  Penn. 
St.  430;  Coleman  v.  Chadwick,  80  lb.  81;  Marvin  v.  Brewster  Min.  Co. 
55  N.  Y.  538;  Horner  v.  Watson,  79  Penn.  St.  242. 


SUPPORT.  35 

the  coal,  or  a  certain  portion,  sufficient  to  sustain  the  superin- 
cumbent weight  of  the  soil,  shall  never  be  removed  ;  but  it  is 
a  right  that  the  ordinary  enjoyment  of  land  shall  not  be  in- 
terrupted, so  that  until  the  enjoyment  of  the  surface  land  is 
disturbed,  the  owner  has  no  right  to  complain  of  the  removal 
of  the  minerals.*  It  is  therefore  perfectly  justifiable  for  a 
mine  owner  to  excavate  the  whole  of  the  minerals,  and  sub- 
stitute artificial  props  to  support  the  surface  land  in  lieu  of 
the  natural  means  of  support  which  he  has  removed.^ 

It  is  obvious  that  as  the  soil  in  one  locality  varies  from  the 
soil  in  another,  so  the  support  required  to  maintain    Natural 
one  kind  of  soil  in  its  natural  position  will  be  greater   glfpportis 
or  less   than  that  which  is   requisite  to  support  an-    absolute 

^  i  i^  and  un- 

other  :  a  sandy  soil  is  more  liable  to  crumble  and  fall  limited. 
into  a  mine  than  clay  or  rock,  and  a  question  therefore  arises 
as  to  the  degree  of  support  to  which  the  owner  of  surface  land 
is  entitled.  Lord  Campbell,  in  delivering  the  judgment  of  the 
Court  of  Queen's  Bench  in  the  case  of  Humphries  v.  Brogden,-'' 
has  answered  the  question  ;  for  he  said :  "  We  likewise 
think  that  the  rule  giving  the  right  of  support  to  the  surface 
upon  the  minerals,  in  tlie  absence  of  any  express  grant,  res- 
ervation, or  covenant,  must  be  laid  down  generally  without 
reference  to  the  nature  of  the  strata,  or  the  difficult}^  of  prop- 
ping up  the  surface,  or  the  comparative  value  of  the  surface 
and  the  minerals.  We  are  not  aware  of  any  principle  upon 
whicli  qualifications  could  be  added  to  the  rule  ;  and  the  at- 
tempt to  introduce  them  would  lead  to  uncertainty  and  litiga- 
tion ;  greater  inconvenience  cannot  arise  from  this  rule,  in  any 
case,  than  that  which  may  be  experienced  where  the  surface 
belongs  to  one  owner  and  the  minerals  to  another,  who  cannot 
take  any  portion  of  them  without  the  consent  of  the  owner  of 
the  surface.  In  such  cases  a  hope  of  reciprocal  advantage 
will  bring  about  a  compromise,  advantageous  to  the  parties  and 

*  Backhouse  v.  Bonoini,  per  Lord  Cranworth,  9  H.  L.  C.  503  ;  34  L.  J. 
Q.  B.  181. 

1  This  was  expressly  adjudged  in  a  recent  case  in  Pennsylvania,  Bell 
V.  Reed,  31  Legal  Int.  389,  as  applied  to  lateral  support. 

•^  12  Q.  B.  at  p.  745  ;  20  L.  J.  Q.  B.  at  p.  13. 


36  NATURE   OF   EASEMENTS. 

to  the  public.  Something  has  been  said  of  a  right  to  a  rea- 
sonable support  for  the  surface  ;  but  we  cannot  measure  out 
degrees  to  which  the  right  may  extend  ;  and  the  only  reasona- 
ble support  is  that  which  will  protect  the  surface  from  subsi- 
dence, and  keep  it  securely  at  its  ancient  and  natural  level." 
If  the  soil  is  of  such  a  character  that  the  subjacent  mines 
cannot  possibly  be  worked  without  causing  the  surface  land 
to  subside,  it  has  been  held,  in  conformity  with  the  above- 
mentioned  doctrine,  that  the  mines  cannot  be  worked  at  all.^ 

A  novel  question  recently  arose  in  Mayor  of  Birmingham 
.  V.  Allen,^  as  to  the  meaning  of  "  adjacent  lands  "  in 
adjacent  determining  the  extent  of  the  right  of  support.  It 
was  held  not  to  be  necessarily  confined  to  land  im- 
mediately/ adjacent. 

The  plaintiff  and  the  defendant  were  the  owners  of  parcels 
of  land,  separated  from  each  other  by  a  narrow  strip  of  land 
belonging  to  a  third  person.  The  owner  of  this  intervening 
strip  had,  many  years  ago,  worked  out  the  coal  beneath  it. 
The  subsequent  working  by  the  defendant  of  the  coal  under 
his  own  land  caused,  or  threatened  to  cause,  a  subsidence  of 
the  plaintiff's  land  ;  and  this  action  was  brought  to  restrain 
him  from  such  working.  In  considering  the  law  applicable  to 
the  case,  the  master  of  the  rolls,  starting  with  the  proposition 
that  a  landowner  is  entitled  to  have  his  land,  in  its  natural 
state,  supported  by  the  land  of  his  neighbor,  said :  "  Who  is 
his  neighbor?  The  neighboring  owner  for  this  purpose  must 
be  the  owner  of  that  portion  of  land  —  it  may  be  a  wider  or  a 
narrower  strip  of  land  —  the  existence  of  which  in  its  natural 
state  is  necessary  for  the  support  of  my  land.  That  is  my 
neighbor  for  that  purpose  ;  as  long  as  that  land  remains  in  its 
natural  state,  and  it  supports  my  land,  I  have  no  right  be- 
yond it,  and  therefore  it  seems  to  me  that  that  is  my  neighbor 
for  this  purpose.  There  might  be  land  of  so  solid  a  character, 
consisting  of  solid  stone,  that  a  foot  of  it  would  be  enough  to 
support  the  land.     There  might  be  other  land  so  friable,  and 

^  Wakefield  v.  Duke  of  Buccleuch,  L.  R.  4  Eq.  613;  86  L.  J.  Ch.  763  ; 
Hext  V.  Gill,  L.  R.  7  Ch.  App.  699  ;  41  L.  J.  Ch.  761. 
1  6  Ch.  Div.  284  ;  37  L.  T.  Rep.  N.  S.  207  (1877). 


SUPPORT.  87 

of  such  an  unsolid  character,  that  you  would  want  a  quarter 
of  a  mile  of  it ;  but,  whatever  it  is,  as  long  as  you  have  got 
enough  land  on  your  boundary  which,  left  untouched,  will 
support  your  land,  you  have  got  your  neighbor,  and  you  have 
got  3'our  neighbor's  land  to  whose  support  you  are  entitled. 
Beyond  that,  it  would  appear  to  me  that  you  have  no  rights." 
It  appearing,  however,  that  in  this  particular  case  the  inter- 
vening strip  would  have  afforded,  if  left  in  its  natural  state, 
a  sufficient  support  to  the  plaintiff's  land,  the  court  said  : 
"  The  plaintiffs  have  no  right  as  against  the  landowners  on 
the  other  side  of  that  intervening  space,  and  they  acquire  no 
right,  whatever  the  owner  of  the  intervening  land  may  have 
done.  If  the  act  of  the  intervening  owner  has  been  such  as 
to  take  away  the  support  to  which  the  first  landowner  who 
complains  is  entitled,  then,  for  whatever  damage  occurs  from 
the  act  which  he  has  done,  the  first  owner  may  have  an  ac- 
tion ;  but  an  action  against  the  intervening  owner,  not  an  ac- 
tion against  the  owner  on  the  other  side  ;  and  it  appears  to 
me  that  it  would  be  really  a  most  extraordinary  result  that 
the  man  upon  whom  no  responsibility  whatever  originally 
rested  —  who  was  under  no  liability  whatever  to  support  the 
plaintiff's  land  —  should  have  that  liability  thrown  upon  him 
without  any  default  of  his  own,  without  any  misconduct  or 
any  misfeasance  on  his  part.  I  cannot  believe  that  any  such 
law  exists,  or  ever  will  exist." 

The  Court  of  Appeals  sustained  the  decision  of  the  master 
of  the  rolls,  Brett,  L.  J.,  saying:  "Although,  therefore,  this 
is  a  case  of  first  impression,  —  that  is  to  say,  a  case  in  which 
we  have,  after  the  master  of  the  rolls,  for  the  first  time,  to 
decide  what  is  the  proper  definition  of  '  adjacent  lands,'  — 
I  think  the  master  of  the  rolls  has  given  a  very  happy  defi- 
nition of  them,  and  one  which  we  ought  to  accept." 

There  is  one  class  of  cases  which  may  be   noticed  here, 
though  they  will  be  mentioned  again  hereafter,''  in    peprh-a- 
which  the  law  does  not  confer  any  natural  right  to   t'o"  "f  "'if- 

•^  ,  .  ^  ural  right 

support ;  or,  to  speak  more  correctly,  in  which  the   to  support 
natural  right  to  support  is  taken  away  :  that  hap- 
^  See  post,  chapters  II.  and  IV. 


38  NATURE   OF   EASEMENTS. 

pens  when  severance  of  surface  land  from  subjacent  mines  is 
effected  by  compulsory  purchase  under  the  Lands  and  Rail- 
ways Chiuses  Consolidation  Acts,  1845,  or  under  private  acts 
containing  provisions  similar  in  character  to  those  contained 
in  them.  Tiiis  result  depends  solely  upon  the  particular 
words  of  the  statutes,  and  has  no  reference  to  the  general 
nature  of  the  natural  right  to  support. 

It  is  commonly  said  tiiat  the  natural  right  to  support  con- 
EfTect  on  tinues  only  while  land  remains  in  its  natural  condi- 
raturai         tiou,  uuburdcned  with  houses;  this  is  not' correct, 

right  to  '  .  .  ' 

support  of  for  the  natural  right  remains,  though  houses  are 
and  ex^a-  built ;  but  the  owner  of  land  cannot  suddenly  in- 
vatmg.  crease  his  right,  or  impose  a  new  or  additional  bur- 
den on  the  servient  tenement  by  erecting  buildings,  and  the 
servient  owner  is  therefore  not  responsible  if  the  land  sinks 
when  he  excavates,  if  the  sinkwg  is  produced  ly  the  increased 
weight  the  dominant  oumer  has  imposed  on  the  surface.  That 
the  natural  right  continues,  is  clear  from  the  decisions  in  the 
cases  of  Brown  v.  Robins,*  and  Stroyan  v.  Knowles,''  in  which 
it  was  held  that  an  action  would  lie  for  removal  of  the  sup- 
port, necessary  for  the  adjoining  land  in  its  natural  condition, 
notwithstanding  houses  had  been  recently  erected  on  the  sur- 
face, provided  the  weight  of  the  houses  did  not  produce  the 
sinking  of  the  land  —  that  is,  provided  the  land  would  have 
sunk  in  the  same  manner  if  no  houses  had  been  erected.  And 
such  is  undoubtedly  the  law  in  America.^  The  question  has, 
apparently,  never  arisen,  whether  the  natural  right  to  lateral 
support  for  surface  land  remains  when  the  subjacent  soil  has 
been  excavated  in  such  a  manner  that  the  surface  would  sink 
more  readily  if  the  adjacent  soil  were  reuioved  ;  but  as  the 
erection  of  houses  on  the  surface  does  not  cause  the  extinction 
of  the  natural  right,  so  it  is  thought  that  excavation  of  the 
subsoil  would  not,  and  that  the  adjacent  owner  would  still  be 

'■  4  H.  &  N.  186;  28  L.  J.  Exch.  250. 

>  6  H.  &  iSr.  454  ;  30  L.  J.  Exch.  102. 

^  The  damages  being  limited  to  the  injury  to  the  land.  Foley  v.  Wyeth, 
2  Allen,  131  ;  Thurston  v.  Hancock,  12  Mass.  220;  Lasala  i-.  Holbrook,  4 
Paige,  169;  Gilmore  v.  DriscoU,  122  Mass.  199. 


SUPPORT.  39 

liable  for  damage  if  he  removed  his  soil  in  such  a  manner  that 
the  ground  would  have  sunk  had  it  remained  in  its  natural 
condition.  The  case  of  Partridge  v.  Scott*  arose  out  of  dam- 
age to  houses  erected  on  excavated  land  caused  by  removal  of 
lateral  support  and  is  no  authority  on  the  point  of  infringe- 
ment of  the  natural  right. 

SUPPORT  FROM  UNDERGROUND  WATER  TO  SURFACE  LAND. 

It  sometimes  happens  that,  owing  to  the  porous  nature  of 
land,  or  from  other  circumstances,  water  naturally  or  acci- 
dentally oozes  under  the  soil,  or  into  old  and  abandoned  mines, 
and  that  this  water,  by  means  of  its  natural  upward  pressure, 
affords  material  support  to  the  surface  land.  Tlie  owner  of 
the  land  has  no  natural  right  to  support  from  such  water, 
though  it  is  possible  that  a  right  to  such  support  as  an  ease- 
ment might  be  acquired.  The  North  Eastern  Railway  Com- 
pany V.  Elliott '  was  the  case  of  an  abandoned  mine  accident- 
ally flooded,  but  the  question  of  natural  right  to  support  was 
not  raised  :  the  vice  chancellor,  Sir  W.  Page  Wood,  decided 
that  the  plaintiffs  had  no  right  to  support  for  their  railway 
bridge,  which  received  support,  as  the  water  got  into  the  mine 
by  accident,  and  the  flooding  was  known  to  be  accidental,  and 
that,  as  all  parties  concerned  were  living  in  a  mining  district, 
where  it  was  well  known  that  when  a  mine  is  drowned  it  is 
sometimes  revived  after  a  long  period  of  time,  it  was  for  the 
company  to  have  stipulated  that  the  accidental  state  of  cir- 
cumstances should  not  be  varied,  if  it  was  intended  that  the 
company,  when  it  purchased  the  land,  should  have  the  benefit 
of  the  support  from  the  water.  Popplewell  v.  Hodkinson  "* 
was  the  case  of  some  cottages  built  on  land  of  a  wet  and  spongy 
character,  the  land  not  having  been  properly  drained  ;  the  ad- 
joining land  was  sold  for  the  purpose  of  erecting  a  church,  and 
on  excavation  for  the  foundations,  the  water  was  drawn  from 
the  spongy  land,  the  surface  subsided  and  cracked,  and  dam- 

*  3  M.  &  W.  220;  7  L.  J.  N.  S.  Exeh.  101. 

^  1  John.  &  H.  145;    29  L.  J.   Ch.  808;    on  appeal  to  L.  C.  30  L.  J. 
Ch.  160 ;  and  to  H.  L.  10  H.  L.  C.  333. 
"*  L.  R.  4  Excli.  248;  38  L.  J.  Exch.  126. 


40  NATURE   OF  EASEMENTS. 

age  ensued  to  the  cottages.  The  Court  of  Exchequer  Cham- 
ber decided  in  favor  of  the  defendant,  merely  stating  that 
there  is  nothing  at  common  law  to  prevent  the  owner  of  land 
draining  his  soil  if  it  is  necessary  or  convenient  for  him  to  do 
so,  though  he  might  by  grant,  express  or  implied,  oblige  him- 
self to  suffer  the  underground  water  to  remain. 

Though,  therefore,  it  is  to  be  taken  as  a  general  rule  that 
Support  there  is  nothing  in  the  fact  that  surface  land  is  sup- 
derKTOund  Parted  by  underground  water,  to  prevent  a  person 
water  to  from  draining  his  ground,  and  so  removing  the  sup- 
water.  port  from  his  neighbor's  soil,  yet  the  rule  is  different 

in  the  case  of  surface  water  supported  by  underground  water, 
if  the  surface  water  is  in  a  defined  and  regular  stream.  It 
ma}'  seem  that  this  matter  belongs  rather  to  the  subject  of 
rights  relating  to  underground  water  than  to  rights  relating 
to  support,  and  that  it  would  be  more  proper  to  reserve  it  for 
consideration  when  rights  as  to  underground  water  are  dis- 
cussed. The  matter  will  be  again  referred  to  hereafter  when 
that  subject  is  under  consideration  ;  but  it  will  be  useful  to 
notice  it  here,  as  there  has  been  a  recent  case  on  the  subject, 
in  order  to  mark  the  distinction  that  has  arisen  between  the 
support  of  land  and  the  support  of  water  from  underground 
water.  In  the  case  of  The  Grand  Junction  Canal  Company 
V.  Shugar,"  the  facts  were  that  the  company  had  a  right  to 
use  the  water  of  a  stream  which  flowed  from  a  pond  to  supply 
their  canal.  The  defendant,  who  represented  a  local  board  of 
health,  made  a  drain  which  collected  and  took  away  the  un- 
derground water,  and  it  seemed  that  by  so  doing  the  support 
was  taken  away  from  the  surface  water,  which  sunk  to  a  lower 
level,  and  the  company's  supply  was  lessened.  The  lord 
chancellor  held  that  although  it  is  ordinarily  a  lawful  thing 
to  collect  any  water  that  may  percolate  underground,  yet  if 
it  cannot  be  got  without  touching  the  water  in  a  defined  sur- 
face channel  it  must  be  left  alone  ;  and  thus  there  is  this 
great  difference,  that  if  underground  water  supports  lands  and 
buildings  the  support  may  be  removed,  be  the  consequences 
what  they  will  ;  but  if  it  supports  other  water  in  a  defined 
"  L.  11.  6  Ch.  App.  483. 


SUPPORT.  41 

stream  it  can  in  no  case  be  touched  if  the  water  of  the  stream 
would  be  caused  to  sink  into  the  ground.  This,  at  first  sight, 
appears  to  be  an  unreasonable  distinction  to  make  ;  but  it 
will  be  seen  hereafter  that  there  are  sundry  important  and 
valuable  rights  in  connection  with  flowing  streams  with  which 
the  ordinary  right  to  collect  underground  water  and  to  drain 
land  is  brought  into  some  conflict,  and  it,  in  reality,  becomes 
a  question  which  of  these  rights  must  be  treated  as  subordi- 
nate to  the  other.  The  lord  chancellor  was  clearly  of  opinion 
that  the  right  to  collect  underground  water  must  be  treated 
as  subordinate  to  the  rights  which  other  persons  have  in  sur- 
face streams,  and,  explaining  his  reasons,  he  said:  "  As  far  as 
regards  the  support  of  the  water,  all  one  can  say  is  this  :  I  do 
not  think  Chasemore  v.  Richards,  or  any  other  case,  has  de- 
cided more  than  this,  that  you  have  a  right  to  all  the  water 
which  you  can  draw  from  the  different  sources  which  may 
percolate  underground  ;  but  that  has  no  bearing  at  all  on 
what  you  may  do  with  regard  to  water  which  is  in  a  defined 
channel,  and  which  you  are  not  to  touch.  If  you  cannot  get 
the  underground  water  without  touching  the  water  in  a  de- 
fined surface  channel,  I  think  you  cannot  get  at  it  at  all.  You 
are  not  by  your  operations,  or  hj  any  act  of  yours,  to  diminish 
the  water  which  runs  in  this  defined  channel,  because  that  is 
not  only  for  yourself,  but  for  your  neiglibors  also,  who  have  a 
clear  right  to  use  it  and  have  it  come  to  them  unimpaired  in 
quality  and  undiminished  in  quantity."  This  decision  only 
refers  to  injuries  to  surface  streams,  but  it  may  be  a  question 
how  far  the  principle  on  which  it  was  based  is  applicable  to 
standing  water  in  which  valuable  rights  exist.  This  will  be 
noticed  in  the  next  division  of  this  section. 

EASEMENT    OF    SUPPORT    FOR    BUILDINGS. 

The  natural  right  to  support  exists  in  respect  of  land  only, 
and  not  in  respect  of  buildings  ;  but  a  right  to  support  for 
buildings,  both  from  adjacent  and  subjacent  land,  may  be  ac- 
quired, and  when  acquired  the  right  is  an  easement.  "  If  the 
plaintiff  has  enjoyed  the  support  of  the  land  of  the  defendant 
for  twenty  years  to  keep  up  his  house,  and  both  parties  knew 


42  NATURE   OF   EASEMENTS. 

of  tli:it  support,  tlio  plaintiff  had  a  liglit  to  it  as  an  easement, 
and  the  defendant  coukl  not  witlidraw  tliat  support  without 
being  liable  in  damages  for  any  injury  that  might  acci-ue  to 
the  plaintiff  thereby.""  It  has  been  thought  some  distinc- 
tion exists  between  the  right  to  subjacent  and  adjacent  sup- 
port for  a  house,  and  that  the  former  is  a  natural  right,  while 
the  latter  is  an  easement.  In  Rogers  v.  Taylor,^  which  was 
an  action  for  damage  sustained  by  a  house  through  subjacent 
excavation.  Pollock,  C.  B.,  stated  that,  as  the  owner  of  sur- 
face land  has  a  right  to  enjoy  it  for  all  the  purposes  for  which 
it  is  ordinarily  applied,  and  among  others  for  building  a 
house,  he  wonld  not  say  that  it  was  necessary  to  prove  a  pre- 
scriptive right  to  support  ;  and  Watson,  B.,  said  that  there 
appears  to  have  been  a  distinction  drawn  in  all  the  cases  be- 
tween lateral  and  vertical  support,  but  that  as  to  the  latter  it 
has  always  been  held  that  the  owner  of  the  surface  is  entitled 
to  the  support  of  the  subsoil.  Cockburn,  C.  J.,  however,  ap- 
pears to  have  thought  differently  ;  for,  in  summing  up  to  the 
jury  at  nisi  prius,  he  laid  it  down  that  the  plaintiff  was  not 
entitled  to  the  support  of  the  soil  unless  for  twenty  years  the 
messuages  had  received  that  support,  by  which  the  right 
might  be  acquired.  It  is  thought  that  of  these,  the  opinion 
of  Cockburn,  C.  J.,  is  correct,  and  that  a  right  to  support  for 
buildings  is  an  easement  which  must  in  every  case  be  ac- 
quired, and  that  it  can  never  be  claimed  as  a  natural  right. 
No  authority  is  cited,  and  it  is  believed  none  existed,  for  the 
dicta  of  Pollock,  C.  B.,  and  Watson,  B.,  and  no  reason  ap- 
pears why  a  surface  owner  should  be   entitled  to   impose  an 

"Hide  V.  Thornborough,  per  Parke,  B.,  2  Car.  &  K.  250;  Hiimpliries 
V.  Brogden,  12  Q.  B.  at  p.  749;  20  L.J.  Q.  B.  at  p.  14;  Partridge  v. 
Scott,  3  M.  &  W.  220  ;  7  L.  J.  N.  S.  Exch.  101  ;  Wyatt  v.  Hiirrison,  3  B. 
&  Ad.  871;  1  L.  J.  N.  S.  K.  B.  237.  But  see  the  American  law  on  this 
subject,  post. 

^  2  n.  &  N.  828;  27  L.  J.  Exch.  173.  In  Humphries  v.  Brogden  (12 
Q.  B.  739;  20  L.  J.  Q.  B.  10),  it  was  said  by  Lord  Campbell,  in  judgment, 
that  where  there  are  separate  freeholds  from  the  surface  of  the  land  and 
the  mincrS.ls  belonging  to  different  owners,  the  court  was  of  opinion  that 
the  owner  of  the  surface,  lohile  unincumbered  with  buHdinf/s,  and  in  its  nat- 
ural state,  is  entitled  to  have  it  supported  by  the  subjacent  mineral  strata. 


SUPPORT.  43 

additional  burden  on  a  mine  owner  because  their  estates  hap- 
pened to  be  severed  horizontally,  if  he  could  not  do  so  when 
their  estates  were  severed  vertically  ;  in  both  cases  the  right 
to  enjoy  surface  land  for  all  the  purposes  to  which  land  is  or- 
dinarily applied,  and  among  others  for  the  purpose  of  building 
houses,  must  be  the  same.  In  the  cases  to  which  Watson,  B., 
refers,  it  will  be  found  that  the  severance  of  the  mines  from 
the  surface  occurred  after  the  houses  were  built,  and  that  con- 
sequently a  right  to  support  would  be  acquired  on  severance 
by  implied  grant,  and  not  as  a  natural  right.^  In  the  case  of 
Harris  v.  Ryding,'"  the  houses  had  been  built  on  the  surface 
after  severance  of  the  mines,  and  Parke,  B.,  said  :  "  It  be- 
comes unnecessary  to  inquire  whether  or  not  he  was  bound  to 
leave  support  for  an  additional  superincumbent  \Veight  upon 
the  surface  ;  probably  he  would  not  Je,"  clearly  showing  that 
his  opinion  was  that  the  right  to  support  for  the  buildings 
must  be  acquired  as  an  easement,  and  that  there  was  no  nat- 
ui'al  right. 

If,  instead  of  erecting  buildings,  and  by  that  means  impos- 
ing a  greater  burden  on  the  adjoining  land,  the  Easement 
owner  excavates  the  subsoil,  and  therefore  renders  for^exca- 
the  surface  more  Ukely  to  fall  when  the  adjacent  vatediand. 
land  is  excavated,  he  cannot  by  such  act  impose  a  greater 
responsibility  on  the  owner  of  the  adjacent  land,  or  increase 
his  own  natural  right  to  lateral  support ;  but  after  his  land 
has  been  excavated  for  twenty  years  he  may  acquire  an  ease- 
ment of  support  from  the  adjacent  soil  for  his  surface  land  in 
addition  to  his  natural  right. 

It  may  be  mentioned  here,  though  it  is  rather  beyond  the 
scope  of  this  treatise,  that  the  mere  fact  of  contigu-   Effect  of 
ity  of  buildings  imposes  an  obligation  on  the  owners   of  bufid-*'^ 
to  use  due  care  and  skill  in  removing  the  one  build-    '"S^- 
ing  not  to  damage  the  other,  even  though  no  right  to  support 
has    been    acquired  ;  ^    but  there  is    no   obligation   upon   the 
owner  of  the  building  about  to  be  removed  to  shore  up  the 

3  Smart  v.  Morton,  5  E.  &  B.  30;  24  L.  J.  Q.  B.  260.    * 
""  5  M.  &  W.  at  p.  71  ;  8  L.  J.  N.  S.  Exch.  at  p.  185. 
'  Dodd  V.  Holme,  1  A.  &  E.  493. 


44  NATURE   OF   EASEMENTS. 

other  building,'  or  to  give  the  owner  of  the  other  building 
notice  of  the  intention  to  remove  his  own."  Although  the 
fact  of  contiguity  of  buildings  raises  an  obligation  to  use  care 
and  skill  in  removing  one  not  to  injure  the  other,  that  obliga- 
tion cannot  arise  if,  from  the  circumstance  of  the  latter  build- 
ing being  underground  or  otherwise,  the  party  removing  the 
former  has  no  notice  of  its  existence ;  for  one  degree  of  care 
would  be  required  where  no  vault  or  building  exists,  but  the 
soil  is  left  in  its  natural  and  solid  state,  another  where  there 
is  a  vault,  and  another  and  still  greater  degree  of  care  would 
be  required  where  the  adjoining  vault  is  of  a  weak  and  fragile 
construction;"  and  it  \vould  be  impossible  to  ascertain  the  pre- 
cise degree  of  care  required  in  the  absence  of  notice  of  the  ex- 
istence of  the  building. 

As  the  right  to  support  for  land  is  a  natural  right,  the 
Right  to  owner  of  surface  land  who  is  entitled  thereto  may 
fami'o?  confer  upon  the  owner  of  the  subjacent  minerals  an 
support.  adverse  right  entitling  him  to  disturb  and  let  down 
the  surface  land  when  mining ;  the  right  to  do  this  is  an  ease- 
ment. Speaking  of  this  easement.  Lord  Wensleydale  said,  in 
the  House  of  Lords :  "  I  do  not  feel  any  doubt  that  this  was 
the  proper  subject  of  a  grant,  as  it  affected  the  land  of  the 
grantor  ;  it  was  a  grant  of  the  right  to  disturb  the  soil  from 
below,  and  to  alter  the  position  of  the  surface,  and  is  analo- 
gous to  the  grant  of  a  right  to  damage  the  surface  by  a  way 
over  it ;  and  it  was  admitted  at  your  lordships'  bar  that  there 
is  no  authority  to  the  contrary."" 

Recently,  and  since  the  first  edition  of  this  book  was  pub- 
lished, there  have  been  several  cases  before  the  courts,  in 
which  a  right  to  let  down  the  surface  of  land,  and  even  to  do 
so  to  the  injury  of  buildings,  has  been  upheld,  when  it  has  ap- 
peared by  deeds  of  conveyance  or  leases  in  which  mines  and 
the  right  to  work  them  have  been  granted  or  reserved,  to  have 

'  Peyton  v.  Mayor  and  Commonalty  of  London,  9  B.  &  C.  725. 
"  Chadwick  v.  Trower,  6  Bing.  N.  C.  1  ;  8  L.  J.  N.  S.  Exch.  286. 
"  Chadwick  v.  Trower,  6  Bing.  N.  C  1  ;  8  L.  J.  N.  S.  Exch.  286. 
•"  Rowbotham  v.  Wilson,  8  H.  L.  C.  at  p.  362;  30  L.  J.  Q.  B.  at  p.  53 ; 
Murchie  v.  Black,  19  C.  B.  N.  S.  190;  34  L.  J..C.  P.  337. 


SUPPORT.  45 

been  the  intention  of  the  parties  that  the  mining  owner  should 
have  a  right  to  remove  all  the  minerals  and  destroy  all  the 
support  under  the  superincumbent  land.^ 

The  nature  and  early  history  of  the  law  of  support  are  so 
much  more  accurately  stated  by  Gray,  C.  J.,  in  the  recent 
case  of  Gil  more  v.  DriscoU,^  than  we  have  elsewhere  found, 
that  we  beg  leave  to  quote  his  own  words.  He  there  says,  at 
p.  201 :  "  The  right  of  an  owner  of  land  to  the  support  of 
the  land  adjoining  is  jure  naturce,  like  the  right  in  allowing 
stream.  Every  owner  of  land  is  entitled,  as  against  his  neigh- 
bor, to  have  the  earth  stand  and  the  water  flow  in  its  natural 
condition.  In  the  case  of  running  water,  the  owner  of  each 
estate  by  which  it  flows  has  only  the  right  to  the  use  of  the 
water  for  reasonable  purposes,  qualified  by  a  like  right  in  every 
other  owner  of  land  above  or  below  him  on  the  same  stream. 
But  in  the  case  of  land,  which  is  fixed  in  its  place,  each  owner 
has  the  absolute  right  to  have  his  land  remain  in  its  natural 
condition,  unaffected  by  any  act  of  his  neighbor ;  and,  if  the 
neighbor  digs  upon  or  improves  his  own  land  so  as  to  injure 
this  right,  may  maintain  an  action  against  him,  without  proof 
of  negligence. 

"  But  this  right  of  property  is  only  in  the  land  in  its  natural 
condition,  and  the  damages  in  such  an  action  are  limited  to 
the  injury  to  the  land  itself,  and  do  not  include  any  injury  to 
buildings  or  improvements  thereon.  While  each  owner  may 
build  upon  and  improve  his  own  estate  at  his  pleasure,  pro- 
vided he  does  not  infringe  upon  the  natural  right  of  his  neigh- 
bor, no  one  can  by  his  own  act  enlarge  the  liability  of  his 
neighbor  for  an  interference  with  this  natural  right.  If  a 
man  is  not  content  to  enjoy  his  land  in  its  natural  condition, 
but  wishes  to  build  upon  or  improve  it,  he  must  either  make 
an  agreement  with  his    neighbor,  or  dig   his  foundations  so 

*  Smith  t;.  Darby,  L.  R.  7  Q.  B.  716;  42  L.  J.  Q.  B.  140;  Eadon  v. 
Jeffcock,  L.  R.  7  Exch.  879;  42  L.  J.  Excli.  36;  Aspden  v.  Seddon,  L.  R. 
10  Ch.  App.  394.      See  Ryckman  v.  Gillis,  5  7  N.  Y.  68,  a  valuable  case. 

1  122  Mass.  199  (1877).  And  see  Riclaart  v.  Scott,  7  Watts,  460; 
McGuire  v.  Grant,  1  Dutch.  356;  Shrieve  v.  Stokes,  8  B.  Monr.  453; 
Charless  v.  Rankin,  22  Mo.  566. 


46  NATURE   OF  EASEMENTS. 

deep,  or  take  such  other  precautions,  as  to  insure  the  stability 
of  his  buildings  or  improvements,  whatever  excavations  the 
neio-hbor  may  afterwards  make  upon  his  own  land  in  the  ex- 
ercise of  his  right. 

"  In  2  Rol.  Ab.  564,  it  is  stated  that  in  Wilde  v.  Minster- 
ley,  in  15  Car.  I.,  it  was  decided  in  the  King's  Bench,  after 
a  verdict  for  the  plaintiff,  that  '  if  A.  be  seised  in  fee  of  copy- 
hold land  next  adjoining  to  the  land  of  B.,  and  A.  erects  a 
new  house  upon  his  copyhold  land,  and  some  part  of  the  house 
is  erected  upon  the  confines  of  his  land  next  adjoining  to  the 
land  of  B.,  and  B.  afterwards  digs  his  land  so  near  to  the 
foundation  of  A.'s  house,  but  no  part  of  A.'s  land,  that 
thereby  the  foundation  of  the  house  and  the  house  itself  fall 
into  the  pit,  yet  no  action  lies  by  A.  against  B.,  because  it 
was  A.'s  own  fault  that  he  built  his  house  so  near  the  land  of 
B.,  for  he  by  his  act  cannot  hinder  B.  from  making  the  best 
use  of  his  own  land  that  he  can.  But  it  seems  that  a  man 
who  has  land  next  adjoining  to  my  land  cannot  dig  his  land 
so  near  my  land  that  thereby  my  land  shall  go  into  his  pit ; 
and  therefore,  if  the  action  had  been  brought  for  this,  it  would 
lie.' 

"  In  the  same  court,  in  15  Car.  II.,  Justices  Twisden  and 
Windham  said  that  it  had  been  adjudged  that,  'if  I,  being 
seised  of  land,  lease  forty  foot  thereof  to  A.  to  build  a  house 
thereon,  and  other  forty  foot  to  B.  to  build  a  house,  and  one 
of  them  builds  a  house,  and  then  the  other  digs  a  cellar  in  his 
land,  whereby  the  wall  of  the  first  house  adjoining  falls,  no 
action  lies  for  that,  because  each  one  may  make  the  best  ad- 
vantage of  his  digging  ; '  '  but  it  seemed  to  them  that  the  law 
is  otherwise,  if  it  was  an  ancient  wall  or  house  that  falls  by 
such  digging.'  Palmer  v.  Fleshees,  1  Sid.  167.  In  another 
report,  the  corresponding  statement  is,  that  'it  was  adjudged 
that  two  having  ground  adjoining,  the  one  built  de  novo,  and 
the  other  in  his  ground  digged  so  near,  that  the  other  fell, 
and  no  remedy,  the  house  being  new.'  Palmer  v.  Flessier,  1 
Keb.  625.  That  adjudication  is  referred  to  in  Siderfin  as  '  7 
Jac.  in  Pigott  and  Surie's  case,'  and  in  Keble  as  '  7  Car.' 
But  Sury  v.  Pigot,  decided  in  1  Car.  I.,  and  fully  reported  in 


SUPPORT.  47 

Popham,  166,  was  upon  another  point,  and  is  so  stated  in 
Keble,  uhi  supra;  and  it  would  seem  that  the  reference  in- 
tended may  have  been  to  the  case  of  Wilde  v.  Minsterley, 
above  cited. 

"  There  are  indeed  two  or  three  early  cases,  in  which  ac- 
tions appear  to  have  been  sustained  for  undernuning  houses 
by  digging  on  adjoining  land.  Slingsby  v.  Barnard,  14  Jac. 
I.,  1  Rol.  R.  430.  Smith  v.  Martin,  23  Car.  IL,  2  Saund. 
400.  Barweli  v.  Kensey,  35  Car.  II.,  3  Lev.  171  ;  S.  C.  1 
Mod.  Entr.  195.  But  in  Slingsby  v.  Barnard,  and  in  Smith 
V.  Martin,  the  objections  made  were  not  to  the  right  to  main- 
tain the  action,  but  only  to  particulars  in  the  form  of  the  dec- 
laration ;  and  in  Barweli  v.  Kensey,  the  declaration,  as  con- 
strued by  the  majority  of  the  court,  alleged  not  merely  digging 
near  the  plaintiff's  foundation,  but  digging  that  foundation  it- 
self. 

"  In  Tenant  v.  Goldwin,  2  Ld.  Raym.  1089,  1094,  Lord 
Holt  and  Justice  Powell  are  reported  to  have  '  held  that  a 
man  cannot  build  so  near  another  man's  house  as  to  throw  it 
down.'  But  the  only  point  adjudged  was  the  same  as  in  Ball 
V.  Nye,  99  Mass.  582,  that  a  man  is  bound,  of  common  right, 
to  keep  a  vault  upon  his  own  land  in  repair,  so  that  the  filth 
shall  not  flow  upon  his  neighbor's  land,  '  for  he  whose  dirt  it 
is  must  keep  it  that  it  may  not  trespass.'  S.  C.  1  Salk.  360, 
361 ;  6  Mod.  311  ;  1  Salk.  21 ;  Holt,  500.  And  upon  a  com- 
parison of  the  various  reports  it  is  evident  that  the  digging  so 
near  another's  wall  as  to  weaken  it  was  not  spoken  of  as  giv- 
ing a  right  of  action  to  the  owner  of  the  wall,  but  as  limiting 
his  liability  for  the  escape  of  filth  caused  by  the  new  digging. 

"  The  latest  and  the  most  authoritative  statement  of  the 
law  of  England  upon  this  point  before  the  American  Revolu- 
tion is  that  of  Chief  Baron  Comyns,  who,  citing  RoUe's 
Abridgment  and  Siderfin's  Reports,  uhi  supra^  says  that  an 
action  upon  the  case  lies  for  a  nuisance,  '  if  a  man  dig  a  pit  in 
his  land,  so  near  that  my  land  falls  into  the  pit ;  but  does  not 
lie,  '  if  a  man  build  an  house,  and  make  cellars  upon  his  soil, 
whereby  an  house  newly  built  in  an  adjoining  soil  falls  down.' 
Com.  Dig.  Action  upon  the  Case  for  a  Nuisance,  A.,  C." 


48  NATURE   OF  EASEMENTS. 

"WATER. 

There  lire  three  kinds  of  rights  which  may  be  acquired  in 
Easements  connection  With  water:  1.  Rights  relating  to  the 
in  connec-     n        f  water.     2.  Riirhts  relating  to  purity  of  water. 

tioii  with       J  "  o         i  ^ 

water.  g.  Rights  relating  to  the  takmg  of  water  for  use.     It 

is  proposed  to  consider  each  of  these  classes  separately. 

Before  doing  this,  however,  it  is  right  to  observe  that  much 
Natural  difference  exists  in  the  cases  of  natural  and  artificial 
fi"fai*'^'*"  streams  ;  it  therefore  becomes  necessary  to  distin- 
Btreams.  guish  the  one  kind  of  streams  from  the  other.  A 
natural  stream  is  one  which  arises  at  its  source  from  natural 
causes,  and  flows  in  a  natural  channel ;  an  artificial  stream  is 
one  that  arises  by  the  agency  of  man,  or  though  arising  from 
natural  causes,  flows  in  a  channel  made  by  man. 

That  a  stream  which  flows  by  the  operation  of  nature  only, 
Water  and  in  a  natural  course,  is  a  natural  stream,  there 

u'ra?sm"ree  ^'^^^  ^^  "°  doubt ;  but  there  is  some  doubt  whether 
in  a  natural    ^^  stream  which  flows  from  a  natural  source,  but  in  a 

course. 

.„  channel  of  a  permanent  character  made  by  man, 
cial  course,  ought  not  in  some  instances  to  be  deemed  a  natural 
stream  ;  ^  or,  if  merely  an  artificial  stream,  whether  all  the 
rights  incident  to  a  natural  stream  are  not  conferred  by  law 
on  the  owners  of  the  adjacent  land.^  Until  recently  there 
was  no  actual  decision  on  this  point,  reference  having  only 
been  made  to  it  by  judges  incidentally  during  arguments  or 

^  Thus,  in  New  Ipswich  Woolen  Factory  v.  Bachelder,  3  N.  H.  190,  the 
owner  of  a  mill  and  land  below  it  had  constructed  an  artificial  channel, 
or  raceway,  from  his  wlieel  pit,  alongside  and  parallel  to  the  natural  stream, 
entering  the  same  some  distance  below.  He  then  sold  the  mill,  retaining 
the  land  through  which  the  raceway  extended,  not  mentioning  the  same  in 
the  deed.  It  was  held  that  such  artificial  channel  was  to  be  considered  as 
a  "  parallel  natural  stream,"  and  that  the  grantee  of  the  mill  liad  a  right 
to  have  the  water  continue  to  flow  therein  through  the  grantor's  land. 

"  Nuttall  V.  Bracewell,  per  Pollock,  C.  B.,  and  Channell,  B.,  L.  R.  2 
Exch.  at  p.  14;  36  L.  J.  Exch.  6;  Sutcliffe  v.  Booth,  32  L.  J.  Q.  B.  136. 
In  Nield  v.  The  London  and  North  Western  Railway  Company,  L.  R.  10 
Exch.  4;  44  L.  J.  Exch.  15,  the  expressions  used  by  Amphlett,  B.,  at  the 
commencement  of  his  judgment,  appear  to  show  that,  in  his  opinion,  a  canal 
is  not  a  stream  of  such  a  character  that  the  rights  which  the  law  ajinexes 
to  natural  streams  would  be  annexed  to  it. 


WATER.  49 

judgments  as  expressions  of  opinion  ;  but  in  the  case  of  Holker 
V.  Poritt,^  the  question  arose  and  was  very  fully  discussed, 
and  judgment  upon  it  given  by  the  Court  of  Exchequer.  In 
that  case  it  appeared  that  a  natural  stream  at  a  certain  point 
divided  itself  into  two  parts,  one  of  which  flowed  naturally  to 
a  trough  for  watering  cattle,  and  thus  was  a  natural  stream. 
At  that  point  the  water,  after  filling  the  trough  escaped  with- 
out any  defined  course  on  to  land  farther  on,  where  it  became 
dispersed,  partly  sinking  into  the  ground  and  partly  running 
away  in  small  rills.  More  than  twenty  years  before  the 
action,  the  owner  of  the  land  made  a  reservoir  to  collect  the 
scattered  water,  and  from  that  made  an  underground  drain  to 
a  mill,  and  the  water  flowed  thence  to  a  river.  The  question 
was,  whether  all  the  rights  commonly  belonging  to  owners  of 
land  on  the  banks  of  a  natural  stream  were  annexed  to  the 
sti-eara  in  the  drain  beyond  the  reservoir.  Here  it  was  quite 
clear  the  drain  was  an  artificial  watercourse  ;  but  the  water 
flowed  from  a  natural  source,  and  till  it  entered  the  reservoir 
formed  a  natural  stream,  and  before  the  drain  was  laid  down 
it  flowed  naturally  over  the  land  where  the  drain  was  laid, 
though  not  in  a  defined  course,  —  or  sunk  into  it.  The  only 
effect  of  the  drain,  therefore,  was  to  collect  and  conduct  the 
water  in  a  defined  course  through  the  land,  where  it  would 
otherwise  have  trickled  indefinitely,  and  not  to  bring  an  alto- 
gether new  stream  through  land  which  would  otherwise  have 
been  without  the  water,  and  the  court  held  that  under  these 
circumstances,  all  the  rights  usually  belonging  to  owners  of 
land  on  the  banks  of  natural  streams  were  annexed  to  the 
stream  in  the  drain,  and  it  is  presumed  the  owner  of  the  drain 
was  saddled  with  reciprocal  obligations.  The  reasoning  of 
Kelly,  C.  B.,  in  his  judgment,  was  this:  "  What,  in  the  con- 
templation of  law,  is  the  nature  of  this  artificial  stream  or  tun- 
nel ?  Suppose  that,  instead  of  a  tunnel  conveying  the  water  into 
what  are  now  the  plaintiff's  premises.  Walker  (who  made  the 
drain  and  then  was  owner  of  the  land)  had  cut  an  open  drain, 
and  so  made  a  stream  visible  on  the  surface  passing  through  his 
land,  and  on  into  the  Irwell  (the  river  from  which  the  supply 
^  L.  R.  8  Exch.  107;  42  L.  J.  Exch.  85. 
4 


50  NATURE   OF  EASEMENTS. 

of  water  originally  came).  If  he  had  done  so,  I  am  of  opinion 
that  he,  or  any  one  claiming  under  him,  through  whose  pi-op- 
erty  this  open  stream  passed,  would  have  been  as  much  en- 
titled to  the  water  running  along  it  as  if  he  had  been  the 
owner  of  land  on  the  bank  of  the  stream,  between  E.  (the 
point  where  the  natural  stream  divided)  and  the  trough.  It 
would  have  been  a  mere  continuance  of  the  stream.  But  the 
cases  upon  this  subject  establish  the  proposition  that  thei-e  is 
no  difference  in  the  contemplation  of  law  between  a  stream 
visible  to  the  eye  and  a  stream  conducted  through  a  tunnel, 
nor  any  difference  in  the  rights  which  may  be  acquired  in 
them  respectively.  If  this  is  so,  on  what  ground  is  there  any 
difference  between  the  rights  of  the  plaintiff  in  the  stream, 
which  now  flows  to  him  through  a  tunnel,  and  the  rights 
which  he  would  have  had  in  an  open  stream  passing  into  and 
through  his  land?  I  think  there  is  none."  Martin,  B.,  said: 
"  Walker,  therefore,  was  entitled  to  have  the  stream  flow  in 
its  ordinary  course  down  to  the  place  where  the  trough  stood, 
and  beyond  which,  twenty-five  years  ago,  it  was  not  continued 
in  a  defined  channel  to  the  Irwell,  but  was  allowed  to  dissi- 
pate itself  over  the  surface  of  the  ground.  Now,  that  state  of 
things  was  exactly  as  if  a  stream  lost  itself  in  a  marsh  or 
swamp,  a  haunt  for  snipe  and  wild  fowl,  but  not  turned  to  any 
agricultural  purpose.  And  I  am  of  opinion  that  if  a  pro- 
prietor in  such  a  case  expends  his  labor  in  cutting  a  course  for 
the  water,  he  acquires  a  right  analogous  to  that  which  he 
would  have  if  that  course  had  been  a  natural  stream,  and  that 
no  distinction  can  be  made  between  a  natural  stream  and  a 
watercourse  made  to  drain  land  and  to  carry  down  the  water 
to  its  natural  destination." 

This  decision  is  undoubtedly  one  of  great  importance,  and 
it  will  be  a  matter  of  considerable  interest  to  see  how  far  the 
principle  involved  in  it  is  applied  to  future  cases.  In  many 
instances,  no  doubt,  substantial  justice  will  be  obtained  by  its 
application  ;  but  that  an  underground  pipe  made  by  a  land- 
owner to  convey  water  to  a  mill  can  in  any  case  be  deemed  a 
natural  watercourse,  and  that  it  shall,  the  moment  it  is  laid 
down,  invest  its  owner  as  against  other  landowners,  it  may  be 


WATER.  51 

miles  away,  with  the  important  rights  which  the  law  annexed 
only  to  natural  streams,  is  somewhat  remarkable.  The  mat- 
ter, too,  is  not  only  of  importance  as  it  affects  others  than  the 
owner  of  the  pipe,  but  as  it  affects  him  also ;  for  if  he  becomes 
entitled  to  the  rights  of  an  owner  of  land  on  the  banks  of  a 
natural  stream,  he  must  also  be  saddled  with  the  obligations 
attendant  upon  that  position,  and  it  will  probably  often  hap- 
pen that  those  obligations  will  in  their  effect  render  his  situa- 
tion very  detrimental  to  his  interests.  Thus,  he  will  not  be 
entitled  at  any  time  to  take  up  the  pipe  and  stop  the  flow  of 
the  water,  or  to  alter  its  direction  so  as  to  deprive  other  per- 
sons lower  down  the  stream  of  their  usual  supply,  and  he  will 
not  be  able  to  use  the  water  for  any  purpose  other  than  an 
owner  of  land  on  the  banks  of  a  natural  stream  would  be  en- 
titled to  use  it ;  that  is,  simply  for  the  benefit  of  or  in  connec- 
tion with  the  land  adjoining  the  stream,  and  it  is  easy  to  see 
that  many  instances  may  occur  in  which  an  estate  may  be- 
come saddled  with  a  heavy  burden  through  the  making  of  a 
drain  which  the  owner  only  intended  for  his  own  benefit  and 
possibly  to  serve  a  purpose  really  temporary,  though  in  its 
character  permanent. 

When  a  stream  is  natural  there  can  be  no  doubt  that  all 
waters  which  flow  into  it  becomes  a    part  of    that    Artificial 
stream,  and  subject  to  the  same  natural  rights  as  the    natinaV" 
rest  of  the  water,  and  that  it  makes  no  difference   stream, 
that  the  water  so  flowing  to  the  natural  stream  was  sent  down 
by  artificial  means." 

It  has  been  observed  that  much  difference  exists  in  the  cases 
of  natural  and  artificial  streams  regarding  rights  con-   Natural 
nected  with  water.     The  difference  is,  that  there  are    eafeme^nts 
certain  natural  rights  which  belong  to  all  owners  of   i"  water. 
land  abutting  on  a  natural  stream  which  are  incident  to  the 
ownership  of  the  land,  but  there  are  no  such  rights  incident 
to  the  ownership  of  land  abutting  on  an  artificial  stream.* 
Many  rights  similar  to  natural  rights  may  be  acquired  in  arti- 

"  Wood  V.  Waud,  3  Exch.  at  p.  779  ;  18  L.  J.  Exch.  at  p.  314. 
^  Rawstron  v.   Taylor,  per  Parke,  B.,  11  Exch.  at  p.  382;  Sampson  v. 
Hoddinott,  per  Cresswell,  J.,  1  C.  B.  N.  S.  at  p.  607. 


52  NATURE   OF   EASEMENTS. 

ficial  streams  ;  bat  they  are  easements,  not  natural  rights. 
Easements  may  be  created  in  both  natural  and  artificial 
streams. 

Land  abutting  on  a  stream,  -whether  natural  or  artificial,  is 
"Ripa-  commonl}'^  called  "  Riparian  Land,"  and  hence  the 
ownerl'""''  owuers  of  that  land  are  called  "Riparian  Owners,"  or 
proprie-        n  Riparian  Proprietors."    Similarly  the  natural  rights 

tors,  and  .  . 

rights.  to  which  reference  has  been  made  are  called  "  Ripa- 

rian Rights,"  but  this  expression  is  used  exclusively  to  denote 
natural  rights,  and  not  easements  which  a  riparian  owner  may 
have  acquired  in  a  stream  either  natural  or  artificial. 

If  a  riparian  estate  is  of  very  great  extent,  and  stretches 
Riparian  far  away  from  the  river's  banks,  the  question  may 
cident'to  ^6  asked  whether  riparian  rights  are  incident  to  the 
the  whole     -wliole  of  this  estate  simply  because  the  whole  of  the 

riparian  -i    J 

estate.  land  belongs  to  one  person,  who  happens  to  be  the 

owner  of  a  portion  of  the  river's  banks,  or  whether  they  are 
limited  to  a  part  of  his  land.  This  question  can,  it  is  thought, 
only  arise  with  reference  to  the  riparian  right  to  take  water 
for  use  on  the  riparian  land  ;  for,  with  regard  to  the  other 
classes  of  riparian  rights,  the  extent  of  the  riparian  estate  can 
be  a  matter  of  no  importance  ;  but,  to  answer  the  question,  it 
would  seem  that  the  riparian  right  is  incident  to  the  whole 
riparian  estate,  of  whatever  size  it  may  be ;  but  the  enjoy- 
ment of  the  rights  must  be  so  limited  that  other  riparian  pro- 
prietors may  not  be  subjected  to  injury  from  undue  use  of 
the  water.  Thus,  it  has  been  said,  "  in  the  above  cited  case 
of  Wood  V.  Waud,  it  was  observed,  that  in  England  it  is  not 
clear  that  an  user  to  that  extent "  (that  is,  to  the  extent  al- 
lowed in  America  and  France)  "  would  be  permitted  ;  nor  do 
we  mean  to  lay  down  that  it  would  in  every  case  be  deemed 
a  lawful  enjoyment  of  the  water  if  it  was  again  returned  into 
the  river  with  no  other  diminution  than  that  which  was  caused 
by  the  absorption  and  evaporation  attendant  on  the  irrigation 
of  the  lands  of  the  adjoining  proprietor.  This  must  depend 
upon  the  circumstances  of  each  case.  On  the  one  hand,  it 
could  not  be  permitted  that  the  owner  of  a  tract  of  many 
thousand  acres  of   porous  soil  abutting  on  one   part  of   the 


WATER.  53 

stream  could  be  permitted    to  irrigate  them  continually  by 
canals  and  drains,  and  so  cause  a  serious  diminution  of  the 
quantity  of  water,  though  there  was  no  other  loss  to  the  nat- 
ural stream  than  that  arising  from  the  necessary  absorption 
and  evaporation  of  the  water  employed  for  that  purpose  ;  on 
the  other  hand,  one's  common  sense  would  be  shocked  by  sup- 
posing that  a  riparian  owner  could  not  dip  a  watering-pot  into 
the  stream  in   order  to  water  his   garden,  or  allow  his  family 
or  his  cattle  to  drink   it.     It  is  entirely  a  question  of  degree, 
and  it  is  very  difficult,  indeed  impossible,  to  define  precisely 
the  limits  which  separate  the  reasonable  and  permitted  use  of 
the  stream  from  its  wrongful  application  ;  but  there  is  often 
no  difficulty  in  deciding  whether  a  particular  case  falls  within 
the  permitted  limits  or  not."  ^     Though,  thei"efore,  it  may  be 
taken   that  riparian   rights  are  incident  to,  and  may  be  used 
for  the  benefit  of,  the  whole  of  a  riparian  estate,  whatever 
may  be  its  extent,  it  is  undoubtedly  the  case  that 
these  rights  are  incident  to  the  estate  in  its  charac-   of  a  ripa- 
ter  of  riparian  land,  and  that,  if  a  riparian  proprie- 
tor  grants  away  a   part  of   his    estate    not  abutting  on  the 
stream,  the  riparian  rights  are  lost  as  regards  the 
part  of  the  estate  granted  ;  and,  for  a  similar  reason,    riparian 
if  a  riparian  owner  grants  his  riparian  rights  apart     " 
from  his  riparian  land,  the  grant,  though  good  as  between  the 
immediate  parties,  is  void,  and  has  no  effect  as  against  par- 
ties other  than  the  grantor."* 

It  should  be  mentioned  that  easements  may  be  acquired  in 
watercourses,  although  the  stream  of  water,  whether    ^  ^ 

....  .  .  Interrait- 

natural  or  artificial,  is  intermittent  —  that  is,  flow-   tent 

Str6£llIlS*  ' 

ing  at  times  only  —  and  that  natural  rights  may  also 
exist  in  intermittent  natural  streams.     In  Drewett  v.  Sheard  * 
a  claim  was  made  to  divert  and  use  certain  "flash"  water 
which  flowed  at  times  down  a  watercourse  to  a  mill,  and  it 

°  Embrey  v.  Owen,  per  Parke,  B.,  delivering  the  judgment  of  the  Court 
of  Exchequer,  6  Exch.  at  p.  371;  20  L.  J.  Exch.  at  p.  217. 

«*  Stockport  Waterworks  Company  v.  Potter,  3  H.  &  C.  300  ;  Nuttall  v. 
Bracewell,  L.  R.  2  Exch.  1 ;  36  L.  J.  Exch.  1. 

«  7  C.  &  P.  465. 


5-4  NATURE   OF   EASEMENTS. 

appeared  that  "  flash  "  Avater  was  water  Avhich  was  h^t  into  a 
river  and  made  to  flow  thenee  into  the  watercourse  on  certain 
davs  by  means  of  sluices,  so  as  to  produce  a  sort  of  artificial 
tide  to  assist  barges  navigated  on  the  river.  Littledale,  J.,  in 
summing  up  to  the  jury,  said  that  there  did  not  appear  to  him 
to  be  anv  objection  in  point  of  hiw  to  the  right  chiimed,  al- 
though it  had  been  said  by  the  counsel  for  the  plaintilf  that 
the  claim  of  a  right  at  the  time  of  the  flashes  was  extraor- 
dinary. In  the  case  also  of  Trafl'ord  v.  Rex,-''  a  watercourse 
used  only  in  times  of  floods  is  mentioned. 

It  is  important  to  observe,  with  regard  to  riparian  rights, 
Oblipuion  that  the  owner  of  the  land  in  which  a  spring  rises 
owner  at  to  the  surface  is  in  no  ditferent  position,  as  regards 
Uie^source  Qtii^^.  riparian  proprietors,  from  the  owner  of  land 
stream.  through  which  the  water  subsequently  flows  :  that 
is,  provided  the  water  rises  to  the  surface  in  a  delined  stream, 
and  does  not  merely  ooze  through  the  soil  in  an  indefinite 
course  ;  for  if  it  does  that,  a  material  difference  exists,  as  will 
be  presently  shown.  He  may  not,  therefore,  obstruct  the  flow 
of  the  water,  or  take  it  for  use  before  it  rises  to  the  surface, 
or  in  any  way  deprive  other  riparian  owners  of  the  enjoyraent 
of  their  natural  rights.* 

Riparian  rights  are  given  by  law  whenever  the  course  of  a 

„  ,      stream    is   known    and  defined,  and  ic  matters   not 

Course  of  ,  ^ 

stream  whether  the  stream  is  on  the  surface  of  the  land 
known  and  or  Under  ground  ;  but  if  the  course  is  unknown,  or 
^^^^  '  not  defined,  no  such  rights  ai'e  given.  It  was  said 
by  Pollock,  C.  B.,  in  Dudden  v.  The  Guardians  of  Glutton 
Union,*  that  "  if  the  channel  or  course  underground  is  known, 
as  in  the  case  of  the  river  ]\Iole,  it  cannot  be  interfered  with. 
It  is  otherwise  when  nothing  is  known  as  to  the  sources  of 
supply  ;  in  that  case,  as  no  right  can  be  acquired  against  the 

•'"  8  Bing.  204. 

"  Dudden  c.  The  Guardians  of  Glutton  Union,  1  II.  &  N.  G27;  26  L.  J. 
Exth.  146  ;  Ennor  i'.  Barwell,  2  Gift".  410. 

*  1  H.  &  N.  at  p.  630;  Chasemore  r.  Richards,  7  H.  L.  C.  349  ;  29  L.  J. 
Exch.  81  ;  Ballacorkish  Silver  Lead  and  Copper  Mining  Company  r.  Har- 
rison, L.  R.  5  P.  C.  49  ;  43  L.  J.  P.  C.  19. 


WATER.  65 

owner  of  the  land  under  which  the  spring  exists,  he  may  do 
as  he  pleases  with  it,  and  if  in  mining  or  draining  his  land 
he  taps  a  spring,  he  cannot  be  made  responsible."  Though, 
therefore,  it  is  lawful  to  drain  land,  although  by  so  doing  the 
underground  water  which  percolates  through  adjoining  land 
is  drawn  off,  yet  if  the  abstraction  of  that  aflEects  a  defined 
stream  on  the  surface,  and  the  water  of  that  is  caused  to  sink 
through  the  soil  and  to  be  drawn  off  too,  it  has  been  held  that 
the  drainage  becomes  unlawful.*  If  water  oozing  through  the 
soil  collects  on  the  surface,  or  trickles  away  without  any  de- 
fined course,  no  riparian  rights  can  be  claimed,  and  it  makes 
no  difference  that  the  water  so  collected  on  the  surface  would, 
if  suffered  to  remain,  ultimately  trickle  away  and  form  part 
of  a  natural  and  defined  stream ;  as  long  as  such  water  re- 
mains on  the  land  it  is  a  nuisance,  and  prejudicial  to  cultiva- 
tion, and  the  landowner  is  entitled  at  any  time  to  drain  his 
land,  or  get  rid  of  the  nuisance  in  any  way  he  finds  most  con- 
venient.-' But  it  has  been  held  that  if  water  comes  in  a  nat- 
ural defined  stream  to  land,  and  then  becomes  dispersed  over 
the  land  and  trickles  away  without  any  defined  course  or  sinks 
into  the  soil,  and  the  landowner  cuts  a  watercourse  to  collect 
and  carry  off  the  dispersed  water,  that  watercourse  may  be- 
come a  part  or  continuation  of  the  natural  stream  so  as  to 
gain  for  the  owner  the  ordinary  riparian  rights  incident  to 
natural  streams/' 

■These  general  principles  having  been  explained,  the  next 
step  is  to  consider  the  particular  kinds  of  natural  rights  and 
easements  to  which  a  landowner  may  be  entitled  in  connec- 
tion with  water.  These  rights  were  stated  to  be  of  three 
kinds  :  1.  Those  which  have  relation  to  the  flow  of  water  ; 
2.  Those  which  have  relation  to  purity  of  water  ;  3.  Those 
which  have  relation  to  the  taking  of  water  for  use. 

»  Grand  Junction  Canal  Company  i\  Shugar,  L.  R.  6  Ch.  App.  483. 

J  Rawstron  v.  Taylor,  11  Exch.  369;  25  L.  J.  Exch.  33;  Broadbent  v. 
Ramsbotham,  11  Exch.  603;  25  L.  J.  Exch.  115. 

^-  Holker  v.  Poritt,  L.  R.  8  Exch.  107  ;  42  L.  J.  Exch.  85.  See  Ma- 
comber  V.  Godfrey,  108  Mass.  219. 


66  NATURE   OF   EASEMENTS. 

1.  Of  those  rights  which  have  relation  to  the  flow  of  water, 
Natural  it  is  established  by  a  series  of  decisions,  commenc- 
flow^'f"^''^  ing  from  a  very  early  period,  that  every  landowner 
wafer.  jj^g  a  natural  right  to  the  uninterrupted  flow,  with- 

out diminution  or  alteration,  of  the  water  of  natural  streams 
which  pass  his  land  in  defined  channels,  and  to  transmit  the 
water  to  the  land  of  other  persons  in  its  accustomed  course,' 
and  this  principle  of  law  has  been  repeatedly  recognized  and 
affirmed  by  decisions  of  later  date.  Thus,  in  Embi-ey  v. 
Owen,'"  it  is  said :  "The  right  to  have  the  stream  to  flow  in 
its  natural  state,  without  diminution  or  alteration,  is  an  inci- 
dent to  the  property  in  the  land  through  which  it  passes." 
And,  again,  in  Gaved  v.  Martyn  :  "■  "  The  flow  of  a  natural 
stream  creates  mutual  rights  and  liabilities  between  all  the 
riparian  proprietors  along  the  whole  of  its  course.  Subject 
to  reasonable  use  by  himself,  each  proprietor  is  bound  to  allow 
the  water  to  flow  on  without  altering  the  quantity  or  quality." 
What  use  of  flowing  water  is  reasonable,  frequently  gives  rise 
to  difficult  questions  for  the  court  to  decide,  and  sundry  de- 
cisions on  the  point  are  reported.  The  consideration  of  these, 
however,  does  not  belong  to  this  part  of  this  treatise,  but  they 
will  be  noticed  hereafter." 

These  riparian  rights,  like  all  other  natural  rights,  may  be 
Natural  temporarily  destroyed  or  modified  by  the  owner,  if 
tered  by  easements  at  variance  with  them  be  created  by  him, 
easements,  and  acquired  by  other  persons,  either  by  grant  or 
prescription.     Thus  a  right  may  be  acquired  by  a  riparian 

'  Sury  V.  Pigot,  Popham,  106;  Brown  v.  Best,  1  Wils.  K.  B.  174;  Bealey 
r.  Shaw,  6  East,  209. 

^  6  Excli.  at  p.  369  ;  20  L.  J.  Exch.  216. 

»  34  L.  J.  C.  P.  at  p.  363;  19  C.  B.  N.  S.  732.  See,  also.  Wood  v.  Waud, 
3  Exch.  748;  18  L.  J.  Exch.  305  ;  Mason  v.  Hill,  3  B.  &  Ad.  304  ;  5  B.  & 
Ad.  1;  The  Wilts  and  Berks  Canal  Navigation  Company  v.  The  Swindon 
Waterworks  Company,  per  James,  L.  J.,  L.  R.  9  Ch.  App.  at  p.  45  7;  43 
L.  J.  Ch.  at  p.  395  ;  in  H.  L.  45  L.  J.  Ch.  638 ;  L.  R.  7  H.  L.  697;  Stein 
V.  Burden,  29  Ala.  127;  Pettibone  v.  Smith,  37  Mich.  579;  Billing  v. 
Murray,  6  Ind.  324;  Prescott  v.  Williams,  5  Met.  429. 

"  See  post,  chapter  III.,  on  the  "  Extent  and  Mode  of  User  of  Ease- 
ments," title  Watkk. 


WATER.  57 

owner  having  land  higher  up  the  stream  to  divert  or  consume 
the  water,  and  thus  prevent  it  flowing  in  its  accustomed 
course  to  the  riparian  land  lower  down  ;  ^  or  a  right  may  be 
acquired  by  the  owner  of  land  situated  lower  down  the  stream 
to  bank  up  the  water  and  pen  it  back  so  as  to  cause  it  to 
flood  the  land  of  other  riparian  owners  situated  above  his  on 
the  stream. 

The  case  of  Wright  v.  Howard  ^  is  frequently  cited,  as  it 
contains  a  clear  and  accurate  exposition  of  the  law  -^rjc^ht  v. 
on  this  subject.  The  judgment  is  that  of  Sir  John  Howard. 
Leach,  V.  C.  ;  and  his  honor,  after  stating  the  facts  of  the 
case,  continued :  "  The  law  on  this  subject  is  extremely  sim- 
ple and  clear.  Primd  facie  every  proprietor  of  land  on  the 
banks  of  a  river  is  entitled  to  that  moiety  of  the  soil  of  the 
river  which  adjoins  to  his  land  ;  and  the  legal  expression  is 
that  each  is  entitled  to  the  soil  of  the  river  usque  filum  aquce. 
Of  the  water  itself  there  is  no  separate  ownership  ;  being  a 
moving  and  passing  body  there  can  be  no  property  in  it. 
But  each  proprietor  of  land  on  the  banks  has  a  right  to  use  it, 
consequently  all  the  proprietors  have  an  equal  right ;  and, 
therefore,  no  one  of  them  can  make  such  an  use  of  it  as  will 
prevent  any  of  the  others  from  having  an  equal  use  of  the 
stream  when  it  reaches  them.  Every  proprietor  may  divert 
the  water  for  the  purpose,  for  example,  of  turning  a  mill ;  but, 
then,  he  must  carry  the  water  back  into  the  stream  so  that 
the  other  proprietors  may  in  their  turn  have  the  benefit  of  it. 
His  use  of  the  stream  must  not  interfere  with  the  equal  com- 
mon right  of  his.  neighbors.  He  must  not  injure  either  those 
whose  lands  lie  below  him  on  the  banks  of  the  river,  or  those 
whose  lands  lie  above  him.  Injury  may  be  done  to  the  pro- 
prietors below  him,  by  diminishing  the  quantity  of  water 
which  descends  to  them  ;  it  may  be  done  to  those  above  him, 
by  returning  water  upon  them  so  as  to  overflow  their  lands,  or 
to  disturb  any  of  the  operations  in  which  they  may  have  occa- 

P  Bealey  v.  Shaw,  6  East,  209. 

9  1  Sim.  &  St.  190;  1  L.  J.  Ch.  94.  See,  also,  Bickett  v.  Morris,  L.  R. 
1  Sc.  Ap.  4  7,  where  the  right  of  a  riparian  owaer  to  build  on  the  alveus 
of  a  stream  is  considered. 


58  NATURE   OF   EASEMENTS. 

sion  to  use  the  water  —  as,  for  example,  by  diminishing  the 
extent  of  its  fall.  Thus  stand  the  common  law  principles 
with  resjiect  to  the  use  of  the  water  of  rivers.  But  the  right 
which  I  have  to  prevent  my  neighbors,  whether  above  or  be- 
low me,  from  so  using  the  water  as  to  interfere  with  my  equal 
common  right,  may  be  the  subject  of  grant.  The  law  pre- 
sumes it  to  be  an  injury  to  me  to  diminish  the  quantity  of 
water  descending  to  my  lands,  or  the  amount  of  its  fall ;  but  I 
may  sell  to  those  above  me  my  right  to  have  the  water  un- 
diminished in  quantity  ;  or  I  may  grant  to  my  neighbors  be- 
low me  the  privilege  of  erecting  a  weir,  which  will  have  the 
effect  of  lessening  my  fall.  Thus  an  use  and  a  right  may 
arise  different  from  the  common  use  and  the  common  right." 

As,  therefore,  an  easement  may  be  acquired,  entitling  a 
Rifiht  to  land-owner  to  divert  the  course  of  a  natural  stream, 
streams  ^  qucstion  suggcsts  itsclf  whether  a  right  cannot  be 
diverted.  acquired  to  have  water  which  would  otherwise  flow 
to  land  diverted  by  another  landowner  higher  up  the  stream. 
No  doubt  there  can  be  such  a  right  if  it  is  created  by  the  ex- 
press agreement  of  the  parties  ;  but  it  is  very  doubtful  if  it  can 
come  into  existence  by  any  other  means,  except,  of  course, 
statutory  enactment.  It  has  been  stated  very  distinctly  by 
Cockburn,  C.  J.,  that  an  easement  of  that  kind  cannot  be  ac- 
quired by  prescription,  if  the  diversion  has  been  an  exercise  of 
a  right  to  divert  by  the  higher  landowner  ;  or,  in  other  words, 
that  the  servient  owner  who  is  bound  to  submit  to  the  diver- 
sion of  a  stream,  cannot,  by  the  exercise  of  the  easement,  gain 
a  right  against  the  dominant  owner,  obliging  him  never  to 
cease  diverting,^  and  this  decision  it  is  thought  practically 
settles  the  question,  for  except  when  streams  are  diverted  in 
exercise  of  easements,  and  when  such  diversions  are  for  the 
benefit  of  the  persons  diverting,  it  is  difficult  to  imagine  a  case 
when  any  owner  of  land  would  divert  a  stream  in  such  a  man- 
ner as  to  enable  another  to  acquire  a  right  against  him. 

The  case  of  flood-water  is  different  from  that  of  flowing 
streams ;  but  it  may  be  mentioned  in  passing  that  every  land- 

*■  Mason  v.  Shrewsbury  and  Hereford  Railway  Company,  L.  R.  6  Q.  B. 
578 ;  40  L.  J.  Q.  B.  293.     See  Bardwell  v.  Ames,  22  Pick.  333. 


WATER.  69 

owner  has  a  riglit  at  common  law  to  protect  his  land  from 
damage  from  floods,  and  for  that  purpose  to  erect    Diversion 
dams  or  other  defences  to  divert  the  flood-water  from    of  flo^d- 
its  natural   course.     This  right,  however,  is  not  an 
easement,  and  requires,  therefore,  merely  this  casual  notice.* 

Somewhat  analogous  to  the  above  case  of  flood-water,  which 
at  times  inundates  land,  is  the  case  of  the  sea  which    y-,- 

'  Diversion 

washes  over  the  shore,  and  at  times  on  to  the  adioin-    "^  the  flow 

,  TIT  •   1     1  1         of  tlie  sea. 

ing  ground  ;  and  as  landowners  are  entitled  to  de- 
fend their  property  from  injury  Jby  floods,  so  they  may  erect 
groynes  or  other  defences  to  defend  it  from  injury  from  the 
sea,  and  they  are  justified  in  diverting  the  flow  of  the  sea, 
although  in  so  doing  they  cause  it  to  flow  with  greater 
violence  on  to  the  land  of  their  neighbors  to  their  damage. 
The  reason  for  this  is  said  to  be  that  the  sea  is  a  common  en- 
emy to  all  owners  of  land  on  the  coast,  and  that  each  land- 
owner is  justified  in  protecting  himself,  although  the  erection 
of  defences  may  render  it  necessary  for  the  adjoining  land- 
owners to  do  the  like.'  In  the  recent  case  of  Hudson  v. 
Tabor  "  the  question  was  raised  whether  a  person  obHo-ation 
who  owns  lands  abutting  on  the  sea-shore  is,  or  can   to  maintain 

SGtl-W3.1Is» 

be,  bound,  either  at  common  law  or  by  prescription, 

*  Trafford  v.  Rex,  8  Bing.  204;  Nield  v.  London  and  North  Western 
Railway  Company,  L.  R.  10  Exch.  4  ;  44  L.  J.  Exch.  15.  From  these 
decisions  it  does  not  appear  clear  whether  the  landowner,  who  defends 
himself  against  floods,  incurs  liability  to  another  person,  if  by  his  act  the 
flood-water  is  thrown  upon  the  other's  land  and  does  injury  there.  In 
Trafford  v.  Rex,  Tindal,  C.  J.,  said  the  exercise  of  the  right  was  subject 
to  the  restriction  that  the  person  exercising  it  did  not  thereby  occasion 
injury  to  the  lands  or  property  of  other  persons;  but  in  the  case  of  Nield 
1'.  The  London  and  North  Western  Railway  Company,  it  was  held  that  as 
the  water  was  not  brought  into  the  canal  by  the  defendants  they  were  not 
liable  for  damage  caused  to  a  neighbor  owing  to  their  act  of  defence.  The 
latter  principle  appears  the  more  reasonable  of  the  two,  for  the  natural 
result  of  preventing  water  coming  on  one  man's  land  is  to  force  it  to  flow- 
on  to  the  land  of  another,  when  it  is  sure  to  be  more  or  less  prejudicial. 
How  then  can  it  be  said  that  there  is  a  right  to  defend  one's  own  land,  by 
forcing  the  water  on  to  another  person's  ground,  and  yet  there  is  no  right 
to  cause  the  injury  which  must  necessarily  follow  ? 

*  Rex  V.  The  Pagham  Commissioners,  8  B.  &  C.  355;  Rex  v.  Bognor 
Commissioners,  6  L.  J.  K.  B.  338. 

«  1  Q.  B.  D.  225;  45  L.  J.  Q.  B.  190. 


60  NATURE   OF  EASEMENTS. 

to  keep  up  a  sea-wall  to  prevent  the  sea  flowing  over  his  land 
and  thence  on  to  that  of  his  neighbor  to  his  damage.  Nu- 
merous ancient  authorities  were  cited  to  establish  a  common 
law  liability  to  keep  up  the  Avall,  but  the  court  held  that 
there  was  no  such  liability.  It  appears,  however,  that  from 
a  very  early  period  the  king,  who  by  the  prerogative  of  the 
crown  had  power  to  see  to  the  defences  of  the  realm,  issued 
on  more  than  one  occasion  commissions  to  inquire  into  the  state 
of  the  sea-walls  and  other  defences  against  the  sea  in  particu- 
lar districts,  and  where  sucli  sea  walls  or  other  works  were 
found  defective,  was  accustomed  to  order  their  repair  and  to 
make  ordinances  for  their  future  maintenance,  assessing  to  the 
expense  of  the  work,  not  only  the  party  to  whom  the  land 
fronting  the  sea  belonged,  but  all  who  derived  benefit  from 
the  work  ;  but  it  was  held  that  even  this  did  not  show  any 
common  law  liability  on  the  adjoining  landowner  to  maintain 
sea-walls  for  the  safety  of  his  neighbors,  the  evidence  tending 
rather  to  show  that  he  only  became  liable  under  the  commis- 
sion and  royal  ordinance.  It  was  also  attempted  to  show  such 
a  practice  to  maintain  the  sea  walls,  that  a  right  in  the  case 
before  the  court  had  been  acquired  by  prescription,  that  is, 
by  long  and  uninterrupted  usage,  for  the  neighboring  land- 
owners to  have  the  sea-wall  kept  up  by  the  frontage  owner ; 
but  though  it  was  held  that  no  such  right  had  been  acquired 
in  that  particular  case,  it  was  admitted  by  the  court  that 
there  are  cases  in  which  an  owner  of  land  fronting  the  sea  may 
be  bound  by  prescription  to  maintain  a  bank  or  wall  to  keep 
out  the  sea  water  for  the  protection  of  the  owner  of  the  ad- 
joining land,  for  that  was  abundantly  shown  by  the  authorities 
cited  in  the  course  of  the  arfjument. 

An  attempt  was  made  to   extend  the  principle   of  right  to 
Tidal  defend  land  from  the  sea,  though  the  defences  used 

rivers.  ^^,^^  send  the  water  on  to  other  persons'  land  to  their 

detriment,  to  the  case  of  tidal  rivers,  on  the  ground  that  tidal 
rivers  are  branches  or  arms  of  the  sea,  and  this  was  urged  in 
order  that  a  riparian  owner  who  had  erected  works  to  protect 
his  shore  might  be  held  irresponsible  for  injury  to  the  oppo- 
site shore,  produced  by  the  change  in  the  course  of  the  streana. 


WATER.  61 

The  justification,  however,  was  not  allowed  ;  for  it  was  said 
that  the  greatest  work  of  man  is  insignificant  when  compared 
with  the  power  of  the  sea,  but  that  this  is  not  so  with  refer- 
ence to  a  navigable  river  ;  and  it  was  added  that  if  the  prin- 
ciple contended  for  were  sustainable,  it  would  follow  that 
every  riparian  proprietor  on  a  navigable  river,  however  distant 
from  the  sea,  and  however  gentle  the  flow  of  the  tide  at  the 
place,  might  throw  any  works  into  the  alveus  that  he  might 
deem  necessary  for  his  protection,  regardless  of  the  injury 
such  works  might  cause  to  the  adjoining  or  opposite  propri- 
etor." 

Among  rights  which  have  relation  to  the  flow  of  water,  the 
right  which  may  be    acquired  by  a   land    or    mine   j^.  ^^^^^ 
owner  to   cause  water,  either  from  a  natural  or  arti-   send  water 

_.,  _  ,  T    •    •  1        1       e  over  land. 

ncial  source,  to  flow  over  the  adjoining  land  or  a 
neighbor,  must  be  included.  It  is  unnecessary  to  say  more  in 
this  place  than  that  such  a  right  may  exist,  and  that  when 
created  it  is  an  easement.  The  acquisition  of  such  an  ease- 
ment will  not,  however,  impose  an  obligation  upon  the  domi- 
nant owner  to  continue  the  supply  of  water  for  tlie  benefit  of 
the  servient  tenement ;  in  other  words,  the  servient  owner 
does  not,  by  the  continued  reception  of  the  water  on  his  land,_ 
acquire  an  easement  against  the  dominant  owner  that  the  lat- 
ter shall  continue  to  supply  him  with  the  water  in  an  unfail- 
ing stream."' 

Regarding  flowing  water,  and  the  easements  and  natural 
rights  which  may  and  do  exist  in  such  water,  it  will  j-iow  of  un- 
readily be  seen  that  a  p-veat  distinction  exists  be-  derground 
tween  streams  which  flow  on  the  surface  of  land, 
and  water  which  percolates  through  the  soil  under  the  surface 
in  unknown  or  undefined  channels  ;  for  if  the  channels  are 
defined  and  known,  it  makes  no  difference  whether  streams 

"  Attorney  General  r.  The  Earl  of  Lonsdale,  L.  R.  7  Eq.  377  ;  38  L.  J. 
Ch.  335;  Bickett  v.  Morris  L.  li.  1  Sc.  Ai)p.  per  Lord  Chelmsford,  C,  at 
p.  56. 

«-  Gaved  v.  Martyn,  34  L.  J.  C.  P.  at  p.  363;  19  C.  B.  N.  S.  732  ;  Ark- 
wright  V.  Gell,  5  M.  &  W.  203;  8  L.  J.  N.  S.  Exch.  201  ;  Mason  v.  The 
Shrewsbury  and  Hereford  Railway  Company,  L.  R.  6  Q.  B.  578  ;  40  L. 
J.  Q.  B.  293. 


62  NATURE   OF    EASEMENTS. 

are  under  or  above  ground.  It  was  not,  however,  till  recent 
Acton  V.  years  that  the  distinction  was  settled  in  a  court  of 
Biuniieii.      j.^^y^  fQj.  ^^j^^jj  ^i^y  gg^g^,  q£  Acton   V.  BlundcU,-^  no 

question  appears  to  have  arisen  on  this  point  in  the  courts. 
That  case  was  an  action  for  diverting  water  which  naturally 
percolated  through  the  earth  to  certain  wells  used  in  connec- 
tion with  cotton  factories  by  the  sinking  of  coal  pits,  and  it 
was  then  for  the  first  time  decided  that  the  rules  of  law  re- 
lating to  the  flow  of  surface  water  do  not  apj)ly  to  under- 
ground streams,  the  course  of  which  is  unknown  or  undefined. 
The  reasons  for  those  rules,  and  the  distinction  which  exists 
between  surface  and  underground  watercourses,  was  fully  dis- 
cussed and  explained  by  Tindal,  C.  J.,  who  delivered  the 
judgment  of  the  Court  of  Exchequer  Chamber,  and  it  may 
not  be  out  of  place  to  quote  a  portion  of  that  judgment,  which 
is  deserving  of  special  notice.  The  chief  justice  said  :  "  The 
ground  and  origin  of  the  law  which  governs  streams  running 
in  their  natural  course  would  seem  to  be  this,  that  the  right 
enjoyed  by  the  several  proprietors  of  the  lands  over  which 
they  flow  is,  and  always  has  been,  public  and  notorious  ;  that 
the  enjoyment  has  been  long  continued  (in  ordinary  cases,  in- 
deed, time  out  of  mind)  and  uninterrupted,  each  man  know- 
ing what  he  receives,  and  what  has  always  been  received  from 
the  higher  lands,  and  what  he  transmits,  and  what  has  always 
been  transmitted  to  the  lower.  The  rule,  therefore,,  either 
assumes  for  its  foundation  the  implied  assent  and  agreement 
of  the  proprietors  of  the  different  lands  from  all  ages  ;  or  per- 
haps it  may  be  considered  as  a  rule  of  positive  law  (which 
would  seem  to  be  the  opinion  of  Fleta  and  of  Blackstone), 
the  origin  of  which  is  lost  by  the  progress  of  time,  or  it  may 
not  be  unfitly  treated  as  laid  down  by  Story,  J.,  in  his  judg- 
ment in  the  case  of  Tyler  v.  Wilkinson,^'  in  the  courts  of  the 
United  States,  as  '  an  incident  to  the  land,  and  that  whoever 
seeks  to  found  an  exclusive  use  must  establish  a  rightful  ap- 

^  12  M.  &  W.  324  ;  13  L.  J.  Exeh.  289.  See,  also,  Chasemore  v.  Rich- 
ards, 7  H.  L.  C.  349;  29  L.  J.  Exch.  81  ;  Regina  v.  Metropolitan  Board 
of  Works,  3  B.  &  S.  710 ;  32  L.  J.  Q.  B.  105. 

y  4  Mason's  (American)  Reports,  401. 


WATER.  63 

propriation  in  some  manner  known  and  admitted  by  the  law.' 
But  in  the  case  of  a  well  sunk  by  a  proprietor  in  his  own  land, 
the  water  which  feeds  it  from  a  neighboring  soil  does  not  flow 
openly  in  the  sight  of  the  neighboring  proprietor,  but  through 
the  hidden  veins  of  the  earth  beneath  its  surface.  No  man 
can  tell  what  changes  these  underground  sources  have  under- 
gone in  the  progress  of  time.  It  may  well  be  that  it  is  only 
yesterday's  date  that  they  first  took  the  course  and  direction 
which  enabled  them  to  supply  the  well.  Again,  no  proprie- 
tor knows  what  portion  of  water  is  taken  from  beneath  his 
own  soil,  how  much  he  gives  originally,  or  how  much  he  trans- 
mits only,  or  how  much  he  receives  ;  on  the  contrary,  until 
the  well  is  sunk  and  the  water  collected  by  draining  into  it, 
there  cannot  properly  be  said,  with  reference  to  the  well,  to 
be  any  flow  of  water  at  all.  In  the  case,  therefore,  of  the 
well,  there  can  be  no  ground  for  implying  any  mutual  consent 
or  agreement  for  ages  past  between  the  owners  of  the  several 
lands  beneath  which  the  underground  springs  may  exist,  which 
is  one  of  the  foundations  on  which  the  law  as  to  runnino- 
streams  is  supposed  to  be  built ;  nor,  for  the  same  reason,  can 
any  trace  of  a  positive  law  be  inferred  from  long-continued 
acquiescence  and  submission,  whilst  the  very  existence  of  the 
underground  springs,  or  of  the  well,  may  be  unknown  to  the 
proprietors  of  the  soil.  But  the  difference  between  the  two 
cases  with  respect  to  the  consequences,  if  the  same  law  is  to 
be  applied  to  both,  is  still  more  apparent.  In  the  case  of  the 
running  stream,  the  owner  of  the  soil  merely  transmits  the 
water  over  its  surface  ;  he  receives  as  much  from  his  neighbor 
above  as  he  sends  down  to  his  neighbor  below ;  he  is  neither 
better  nor  worse  ;  the  level  of  the  water  remains  the  same. 
But  if  the  man  who  sinks  the  well  in  his  own  land  can  acquire 
by  that  act  an  absolute  and  indefeasible  right  to  the  water 
that  collects  in  it,  he  has  the  power  of  preventing  his  neigh- 
bor from  making  any  use  of  the  spring  in  his  own  soil,  which 
shall  interfere  with  the  enjoyment  of  the  well.  He  has  the 
power  still  further  of  debarring  the  owner  of  the  land  in 
which  the  spring  is  first  found,  or  through  which  it  is  trans- 
mitted, from  draining  his  land  for  the  proper  cultivation  of 


64  NATURE   OF   EASEMENTS. 

the  soil ;  and  this  by  an  act  which  is  vokintary  on  his  part, 
and  Avhich  may  be  entirely  unsuspected  by  his  neighbor.  He 
may  impose  on  such  neighbor  the  necessity  of  bearing  a  heavy 
expense  if  the  latter  has  erected  machinery  for  the  purposes 
of  mining,  and  discovers  when  too  late  that  the  appropriation 
of  the  water  has  already  been  made.  Further,  the  advantage 
on  one  side  and  the  detriment  to  the  other  may  bear  no  pro- 
portion. The  w^ell  may  be  sunk  to  supply  a  cottage  or  a 
drinking-place  for  cattle,  whilst  the  owner  of  the  adjoining 
land  may  be  prevented  from  winning  metals  and  minerals  of 
inestimable  value.  And  lastly,  there  is  no  limit  of  space 
within  which  the  claim  of  right  to  an  underground  spring  can 
be  confined  ;  in  the  present  case  the  nearest  coal-pit  is  at  the 
distance  of  half  a  mile  from  the  well  ;  it  is  obvious  that  the 
law  must  equally  apply  if  there  is  an  interval  of  many  miles." 
Water,  unless  confined  in  a  vessel,  is   not  the   subject  of 

property,  but  being  provided  by  nature  for  the  com- 
lected  in  a     mon  benefit  of  mankind,  every  man  has  a  right  to 

use  it  for  his  own  advantage  as  long  as  it  remains 
upon  or  under  his  land  ;  if,  from  its  natural  unstable  and  wan- 
dering character,  it  escapes  from  the  land  of  one  person  to  that 
of  another,  the  right  of  the  former  to  the  water  is  gone.  If  a 
man  erects  a  tank  and  confines  water  therein,  the  water  is  his 
as  long  as  it  remains  in  the  tank,  but  no  longer;  and  so  if  he 
digs  a  well ;  the  fact,  however,  of  a  man  digging  a  well  for  the 
collection  of  water  cannot  impose  any  restriction  upon  iTeigh- 
boring  landowners,  disentitling  them  to  use  their  land  in  any 
way  they  please.  If,  therefore,  they  think  proper  to  dig  a  pit 
and  excavate  minerals,  or  to  sink  a  well  for  their  own  use, 
they  do  no  wrong  in  law  to  the  owner  of  the  first  well,  even 
though  the  water  is  made  to  escape  therefrom  and  the  well  is 
drained,  nor  if  the  water  is  prevented  percolating  through  the 
soil  and  finding  its  way  to  the  well  as  it  had  previously  been 
accustomed.^ 

'  Acton  V.  Blundell,  12  M.  &  W.  324;  13  L.  J.  Exch.  289;  New  River 
Company  v.  Johnson,  29  L.  J.  M.  C.  93;  Cliasemore  v.  Kichards,  7  H.  L. 
C.  349;  29  L.  J.  i:xcli.  81  ;  Race  v.  Ward,  4  E.  &  B.  702;  24  L.  J.  Q.  B. 
153;  Ballacorkish  Mining  Company  r.  Dumbell,  L.  R.  5  P.  C.  49;  43 
L.  J.  P.  C.  19. 


WATER.  65 


IN    AMERICA, 

Also,  it  is  well  settled  that  no  action  lies  for  cutting  off  un- 
derground water,  soaking,  or  percolating  through  the  soil  in 
unknown  and  undefined  channels,  and  the  doctrine  of  Ac- 
ton V.  Blundell  is,  for  the  most  part,  followed  and  approved.^ 
And  even  if  one  proprietor  has  collected  such  underground 
water  into  a  well,  the  adjoining  owner  may  also  lawfully  dig 
a  well  or  otherwise  excavate  on  his  own  land  for  useful  pur- 
poses, although  the  effect  be  to  entirely  cut  off  the  supply  to 
the  first  well.  Whether  he  would  be  liable  if  he  did  such 
act  wantonly  and  maliciously,  and  without  a  bond  fide  in- 
tention of  improving  his  own  estate,  is  not  so  well  agreed. 
Some  hold  that  his  right  is  absolute,  without  regard  to  mo- 
tive, and  that  a  man's  motive  cannot  make  an  act  illegal, 
which  was  not  in  itself  wrongful.^  On  the  other  hand,  so 
many  respectable  authorities  incline,  if  not  decide  the  other 
way,  that  it  can  hardly  be  considered  as  yet  a  settled  ques- 
tion.^ And  conversely  no  proprietor  has  an  absolute  right 
that .  such  water  shall  continue  to  drain  off  or  percolate 
through  his  neighbor's  land  as  it  has  formerly  done.*  A  third 
view,  maintained  by  some  American  courts,  is,  that  a  land- 
owner has  not  an  absolute  and  unqualified  property  in  under- 
ground water,  as  he  has  in  the  sand  and  rock  that  form  part 
of  the  soil,  and  so  may  do  as  he  pleases  with  it,  but  that  his 
rights  therein  are  governed  by  the  same  general  principles 
that  regulate  the  use  of  water  flowing  on  the  surface  in  well 
defined  streams  or  channels ;  that  is,  he  may  make  a  reason- 

1  See  Chatfield  v.  Wilson,  28  Vt.  49;  31  lb.  358;  Harwood  v.  Ben- 
ton, 32  Vt.  724;  Haldeman  v.  Bruckhardt,  45  Penn.  St.  521  ;  Wheatley 
V.  Baugh,  25  Penn.  St.  528  ;  Trustees,  &c.,  v.  Youmans,  50  Barb.  316  ;  45 
N.  Y.  362;  Bliss  v.  Greeley,  45  N.  Y.  671;  Chase  v.  Silverstone,  62  Me. 
175;  Frazier  v.  Brown,  12  Ohio  St.  294;  Ellis  v.  Duncan,  21  Barb.  230. 

2  See  Chatfield  v.  Wilson,  28  Vt.  49;  Phelps  v.  Nowlen,  72  N.  Y.  39; 
Heald  v.  Casey,  11  C.  B.  993;  Clinton  v.  Myers,  46  N.  Y.  511. 

3  See  Greenleaf  v.  Francis,  18  Pick.  117;  Wheatley  v.  Baugh,  25  Penn. 
St.  533;  Roath  v.  DriscoU,  20  Conn.  533;  Chasemore  v.  Richards,  5  H.  & 
N.  990  (Am.  ed.);  Trustees,  &c.  v.  Youmans,  50  Barb.  327. 

4  See  Goodale  v.  Tuttle,  29  N.  Y.  466;  Mosier  v.  Caldwell,  7  Nev.  363. 

5 


66  NATURE   OF   EASEMENTS, 

able  use  of  it  for  domestic,  agricultural,  or  manufacturing 
purposes,  not  however  trenching  upon  the  similar  rights  of 
others.  And  therefore  the  landowner  may,  in  the  reasonable 
use  of  his  own  land,  obstruct  or  divert  such  underground 
water,  by  walls  for  cellars  and  other  purposes,  and  may  dig 
wells  and  use  the  water  for  domestic  or  agricultural  purposes ; 
or  he  mav  drain  his  land,  or  by  obstructions  for  reasonable 
purposes  obstruct  the  natural  drainage  of  his  neighbor  through 
his  land  without  being  responsible  for  any  damage  thereby  oc- 
casioned. To  the  Superior  Court  of  New  Hampshire  belongs 
the  distinction  of  first  advancing,  and  still  adhering  to  this 
doctrine,  admitted  to  be  somewhat  at  variance  with  Acton  v. 
Blundell.i 

A   case  relating   to   the  right   to  underground   water  was 

lately  decided  in  the  Court  of  Chancery,  of  a  char- 
Under-  -^  .      1    .  1      1     •  • 
ground  wa-   acter  to  be  noticed,  inasmuch  as  the  decision  intro- 

inp  surface  duced  a  modification  into  the  general  rule  that  a 
streams.  landowner  has  full  liberty  to  collect  or  dispose  of 
underground  water  as  he  pleases,  regardless  of  his  neighbor's 
interests,  if  the  water  does  not  flow  in  a  known  and  defined 
sti'eam.  In  that  case,  the  defendant,  who  represented  a  local 
board  of  health,  made  a  drain  to  collect  percolating  under- 
ground w'ater,  and  the  effect  was  that  surface  water  which 
flowed  in  a  defined  stream  sunk  into  the  earth,  and  the  stream 
was  diminished.  It  was  decided  that,  though  ordinarily  a 
landowner  has  the  right  to  act  as  the  defendant  had  acted,  yet 
that  he  had  no  right,  even  indirectly,  to  interfere  with  the  sur- 
face stream,  and  an  injunction  was  granted  to  restrain  him 
from  collecting  tlie  underground  water  in  such  a  manner  as  to 
interfere  with  that  on  the  surface.  For  the  defence  it  was 
urged  that  there  was  no  difference  between  a  flowing  stream 
on  the  surface  of  the  land  and  water  collected  in  a  well,  and 
that  as  the  collection  of  underground  water  was  justifiable, 
even  though  the  water  in  a  well  was  drawn  off  thereby,  so  it 
was  justifiable  though  the  water  in  the  stream  was  lessened. 
It  was  decided,  however,  that  that  was  not  so,  and  it  was  said 

1  See  Barrett  v.  Salisbury  Man.  Co.  43  N.  H.  569  ;  Swett  v.  Cutts,  50 
N.  H.  439.  See,  further,  Taylor  v.  Welch,  6  Oreg.  198 ;  Buffum  v.  Harris, 
5  R.  I.  243. 


WATER.  67 

that  the  distinction  was  plain.  "  If,"  said  Lord  Hatherley, 
C,  "  you  are  simply  using  what  you  have  a  right  to  use,  and 
leaving  your  neighbor  to  use  the  rest  of  the  water  as  it  flows 
on,  you  are  entitled  to  do  so  ;  but  you  must  not  appropriate 
that  which  you  have  no  right  to  appropriate  to  yourself.  In 
this  case  there  is  ex  concessis,  a  defined  channel  in  which  this 
water  was  flowing,  and  I  think  the  evidence  is  clear  that  some 
of  it  is  withdrawn  by  the  drain  which  the  local  board  have 
made.  As  far  as  regards  the  support  of  the  water,  all  one  can 
say  is  this  :  I  do  not  think  Chasemore  v.  Richards,  or  any 
other  case,  has  decided  more  than  this,  that  you  have  a  right 
to  all  the  water  which  you  can  draw  from  the  different  sources 
which  may  percolate  underground ;  but  that  has  no  bearing 
at  all  on  what  you  may  do  with  regard  to  water  which  is  in  a 
defined  channel,  and  which  you  are  not  to  touch.  If  you  can- 
not get  at  the  underground  water  without  touching  the  water 
in  a  defined  surface  channel,  I  think  you  cannot  get  at  it  at 
all.  You  are  not  by  your  operations,  or  by  any  act  of  yours,  to 
diminish  the  water  which  runs  in  this  defined  channel,  because 
that  is  not  only  for  yourself,  but  for  your  neighbors  also,  who 
have  a  clear  right  to  use  it  and  have  it  come  to  them  unim- 
paired in  quality  and  undiminished  in  quantity."  " 

2.  The  next  kind  of  water-rights  to  be  considered  are  those 
which  have  relation  to  purit^^  of  water. 

It  is  a  well   established   rule  of  law  that  every  landowner 
has  a  natural  right  that  the  water  of  natural  streams    Natural 
which  passes  over  his  land   shall  be  suffered  to  con-    "^jl|[  *°f 
tinue  in  its  natural  state  ;   that  is,  not  only  that  it    water. 
shall  be  uninterrupted  in  its  course,  but  also   that  it  shall  be 
suffered   to   continue  in  its    naturally  pure  condition.     This 
principle  has  been  supported  in  many  decisions  of  late  years, 
but  the  leading  case  on  the  point  is  Wood  v.  Waud.*     The  ac- 
tion in  that  case  was   brought  against   the   defendants,  who 
were    worsted-spinners     and    wool-combers   at    Bradford,   for 

"  Grand  Junction  Canal  Company  v.  Shugar,  L.  R.  6  Cli.  App.  483. 

*  3  Exch.  748;  18  L.  J.  Exch.  305.  And  the  law  is  so  established  in 
America.  Merrifield  v.  Lombard,  13  Allen,  16;  Dwight  Printing  Co.  v. 
Boston,  122  Mass.  583;  McCallum  v.  Germantown  Water  Co.  54  Penn. 
St.  40. 


68  NATURE    OF   EASEMENTS. 

having  in  the  course  of  their  business  poured  soapsuds,  wool- 
combers'  suds,  and  other  refuse  matter  into  a  natural  stream, 
the  water  of  which  flowed  from  their  premises  to  the  plain- 
tiff's mills.  It  was  proved  that  many  other  manufacturers 
poured  filthy  matter  into  the  stream,  and  that  the  Bradford 
sewers  also  discharged  themselves  into  the  same  place,  so  that 
the  damage  actually  caused  by  the  defendants  was  impercep- 
tible ;  but  it  was  held  that  the  plaintiffs  had  received  damage 
in  point  of  law,  for  they  had  a  right  to  the  natural  stream  flow- 
ing through  their  land  in  its  natural  state  as  an  incident  to 
the  property  in  the  land  through  which  the  watercourse  flowed, 
and  that  the  right  continued  notwithstanding  the  pollution 
from  other  sources. 

There  is  no  difference  with  regard  to  the  natural  right  to 
Purity  of  pui'ity  of  Water  between  the  cases  of  water  flowing 
watertiick-   openly  on  the  surface  of   land  in  a  defined  channel 

lin"*  over 

land  or  and  Water  trickling  over  the  ground  without  any  de- 
through"  fined  course,  or  water  percolating  through  the  soil  in 
the  soil.  unknown  or  undefined  streams.  In  each  case  the 
landowner  has  a  natural  right  that  the  water  shall  not  be  pol- 
luted. The  principal  case  on  this  point  is  Hodgkinson  v. 
Ennor,*^  in  which  it  was  urged  that  the  principle  of  law  relat- 
ing to  diversion  or  obstruction  of  underground  water  flowing 
in  unknown  or  undefined  streams,  established  in  the  case  of 
Chasemore  v.  Richard,'^  applied  equally  to  pollution  of  such 
water ;  but  it  was  held  not  to  be  so,  for  that  although  the 
person  polluting  the  water  might  have  a  right  to  use  it  in  any 
way  he  thought  proper,  as  for  washing  lead,  still  that  the 
maxim  sic  utere  tuo  ut  alienum  non  Icedas  applied  to  the  case, 
and  that  he  could  use  the  water  only  in  such  a  manner  as  to 
avoid  causing  damage  to  his  neighbor. 

As,  then,  all  landowners  have  this  natural  right  to  purity 

-,.  .  ^  ^        of  the  water  of  streams,  whether   above   or  under- 

pollute         ground,  so  other  persons  may  obtain  adverse   rights 

or  easements  entitling   them  to  pollute    the  water. 

There  are  many  instances  to  be  found  in  the  Reports  of  the 

=  4  B.  &  S.  229;  32  L.  J.  Q.  B.  231. 
**  7  H.  L.  C.  349;  29  L.  J.  Exch.  81. 


WATER.  69 

acquisition  of  rights  of  this  kind,  but  it  is  unnecessary  to  refer 
to  them  with  particularity  in  this  place/ 

3.  The  last  class  of  easements  to  which  a  landowner  may 
become  entitled  in  connection  with  water  are  rights    The  right 
to  take  water  from  the  soil  of  other  persons  for  use.    ^ater  for 
It  will  be  remembered  that  in  explaining  the  nature    "se. 
of  an  easement  and  the  definition  laid  down  in  the  early  part 
of  this  chapter,  it  was  shown  that  a  right  to  take  water  in 
the  land  of  another  person  is  an  easement,  and  not  a  profit 
a  prendre;  and  the  reason  for  this  was  explained  to  be  that 
water  is  not  a  part  or  the  produce  of  the  soil,  nor  the  prop- 
erty of  the  owner  of  the  land  over  which  it  flows  or  on  which 
it  stands/ 

There  are  two  modes  of  making  use  of  water.    To  one  mode 
—  that  of  using  it  as  it  flows  to  turn  a  mill  —  refer-   ^^^^^^^ 
ence  has  already  been  made  ;  to  the  other  —  namely,    right  to 

.     „  .  , .       1'        •  use  water. 

that  of  taking  it  for  consumption  —  attention  is  now 
directed.  To  take  water  for  this  purpose  is  another  of  the 
natural  rights  to  which  every  owner  of  land  on  the  margin  of 
a  natural  stream  is  entitled  by  law  in  respect  of  his  riparian 
land  ;  thus  it  is  said  :  "  The  right  to  have  the  stream  to  flow 
in  its  natural  state  without  diminution  or  alteration  is  an  in- 
cident to  the  property  in  the  land  through  which  it  passes ; 
but  flowing  water  is  publici  juris,  not  in  the  sense  that  it  is  a 
honum  vacans,  to  which  the  first  occupant  may  acquire  an  ex- 
clusive right,  but  that  it  is  public  and  common  in  this  sense 
only,  that  all  may  reasonably  use  it  who  have  a  right  of  access 
to  it ;  that  none'  can  have  any  property  in  the  water  itself,  ex- 
cept in  the  particular  portion  which  he  may  choose  to  ab- 
stract from  the  stream  and  take  into  his  possession,  and  that 
during  the  time  of  his  possession  only.  See  5  B.  &  Ad.  24. 
But  each  proprietor  of  the  adjacent  land  has  the  right  to  the 
usufruct  of  the  stream  which  flows  through  it."  ^ 

e  Wood  V.  Waud,  3  Exch.  748;  18  L.  J.  Exch.  305;  Wright  v.  Williams, 
1  M.  &  W.  77 ;  5  L.  J.  N.  S.  Exch.  107;  Rameshur  v.  Koonj,  4  App.  Cas. 
121  (1879),  an  interesting  case  on  this  point. 

/Ante,  p.  7.  See  Post  v.  Pearsall,  22  Wend.  425;  HufF  v.  McCauley, 
53  Penn.  St.  210;  Hill  v.  Lord,  48  Me.  99. 

9  Embrey  v.  Owen,  6  Exch.  at  p.  369;  20  L.  J. 'Exch.  216. 


70  NATURE   OF   EASEMENTS. 

It  may  at  first  sight  appear  to  be  a  contradiction  to  say  that 
Limit  of  one  riparian  owner  is  entitled  to  the  uninterrupted 
natural        g^^  ^f  ^j^^  ^atcr  of  a  stream,  and  that  another  ripa- 

right  to  _  '■ 

use  and  ^ian  owner  who  has  land  higher  up  the  stream  may 
water.  consume  the  water  before  it  flows  down  to  the  land 

of  the  former  ;  but  it  will  be  shown  hereafter,''  when  the  ex- 
tent and  mode  of  user  of  easements  is  examined,  that  these 
rights  to  the  uninterrupted  flow  of  streams  and  to  consume 
the  water  are  limited  in  their  extent  by  one  another,  and  that 
it  is  neither  the  right  of  one  riparian  owner  that  the  stream 
shall  flow  in  an  absolutely  unaltered  state,  nor  the  right  of  the 
other  to  use  and  consume  any  quantity  of  the  water  that  suits 
his  purpose. 

Water  may  be  taken  for  use  either  when  it  is  stationary  in 
Nature  of  ^  well  or  poud,  or  when  it  is  flowing  in  a  stream, 
to^take'^'^  A  natural  right  to  take  water  for  use  exists  only 
water.  while  it  stands  on  or  flows  over  the  land  of  the  per- 

son who  takes  it ;  but  it  will  be  seen  that  there  is  a  difference 
between  the  natural  right  to  take  water  while  it  is  standing 
on  the  land  of  the  taker,  and  the  natural  right  to  take  water 
while  it  is  flowing  towards  the  land  of  another  person  ;  in  the 
former  case  the  right  is  the  natural  proprietor}^  right  incident 
to  the  ownership  of  the  land  to  take  the  water  while  it  re- 
mains there,  just  as  the  owner  might  take  stones,  earth,  or 
anything  growing  —  it  is  not  a  natural  easement  or  right  ex- 
ercised adversely  to  the  interest  of  another  person.  But  the 
natural  right  to  take  water  while  it  is  flowing  towards  an- 
other person's  land  is  more  than  a  proprietory  right  —  it  is  a 
natural  easement  exercised  adversely  to  the  interest  of  another 
person  who  is  deprived  by  the  exercise  of  the  right  of  the  en- 
joyment of  the  water  which  would  otherwise  have  passed  to 
him.  It  is  of  the  latter  kind  of  natural  right  to  use  water 
that  it  is  purposed  to  treat  in  this  volume. 

If  water  be  standing  or  flowing  on  the  land  of  another  per- 
son, a  right  to  take  that  water  for  use  on  the  premises  of  the 
person  taking  it  is  in  no  case  a  natural  right,  but  an  easement. 
This  distinction  is  very  marked  in  the  case  of  Crossley  & 
''  SeQ  post,  chapter  III. 


WATER.  71 

Sons  (Limited)  v.  Lightowler,'  which  was  a  suit  for  an  in- 
junction to  restrain  the  defendants  from  pollutinf^  a  running 
stream.  In  the  judgment  it  was  said  by  the  lord  chancellor 
(Lord  Chelmsford)  :  "  From  what  has  been  already  said  it 
may  be  collected  that  in  my  opinion,  if  the  plaintiffs  had 
proved  the  pollution  of  the  Hebble  opposite  to  their  mills  by 
the  defendants,  they  would  have  had  good  ground  for  an  in- 
junction, although  they  were  not  actually  using  the  water  for 
their  business.  But  although  the  plaintiffs,  by  their  bill,  as- 
sert their  rights  as  riparian  proprietors,  the  case  which  they 
prove  is  of  an  entirely  different  description."  It  appeared 
from  the  evidence  that  the  plaintiffs,  in  order  to  obtain  a  sup- 
ply of  pure  water  for  their  mills  (the  Dean  Clough  Mills), 
which  were  situated  on  the  banks  of  the  Hebble,  had  obtained 
a  right  to  lay  a  pipe  from  their  mills  to  a  point  on  the  stream 
above  the  mouth  of  a  foul  water  pipe  from  some  dye-works 
belonging  to  Messrs.  Pilling,  by  which  means  they  were  en- 
abled to  convey  the  water  to  their  mills  before  it  became  pol- 
luted by  the  foul  water  from  the  dye-works.  The  lord  chan- 
cellor continued :  "  Whether  the  agreement  with  the  Messrs. 
Pilling,  however  binding  upon  them,  would  enable  the  plain- 
tiffs to  assert  the  right  acquired  under  it  in  their  own  names 
against  any  persons  fouling  the  water  thus  artificially  obtained, 
is  perhaps  doubtful  ;  but  the  plaintiffs  do  not  claim  as  the 
grantees  of  Pilling,  but  in  their  character  of  riparian  proprie- 
tors, and  the  fouling  which  they  prove  is  not  of  the  water 
which  flows  between  the  banks  at  Dean  Clough,  but  of  the 
supply  which  they  draw  to  the  mills  through  pipes  from  a 
higher  source."  .  .  .  .  "  This  is  clearly  not  an  injury  to  the 
rights  of  the  plaintiffs  as  riparian  proprietors.''^ 

Instances  of  rights  to  take  water  are  very  common  and 
within  every  person's  experience  ;  cases  of  right  to  go  to  a 
neighbor's  pond  to  water  cattle,  or  to  his  well  to  draw  water 
for  household  use,  or  to  run  pipes  through  his  land  to  a  well 
or  flowing  stream  to  obtain  water  for  manufacturing  purposes, 
and  similar  cases  innumerable,  are  frequently  met  with,  and  it 
is  needless  to  cite  authorities  to  show  that  these  are  ease- 
ments. 

<  L.  R.  2  Ch.  App.  478;  36  L.  J.  Ch.  584. 


72  NATURE   OF  EASEMENTS. 


WATS. 

The  next  class  of  easements  to  be  noticed  is  rights  of  way  ; 
that  is,  rights  wliich  landowners  may  have  of  passing  over  the 
soil  of  other  persons  for  the  purpose  of  going  to  or  from  their 
own  estates. 

A  right  of  way  imports,  ex  vi  termini^  a  right  of  passing 
over  another's  land  in  some  particular  line,  and  a  right  to  pass 
over  in  any  direction  and  at  any  place  wherever  most  con- 
venient for  the  party  claiming  such  way,  cannot  be  acquired 
by  prescription. 1 

It  may  be  remarked  that  this  class  of  easements  differs  from 

,    all  those  which  have  hitherto  been  noticed  in  that 
No  natural 

rights  of       there  are  no  rights  of  this  class  which  fall  under  the 
^'  denomination  of  natural  rights.     Rights  of  way  ar-e 

never  given  by  law  to  owners  of  land,  a  circumstance  which 
was  stated  at  the  commencement  of  this  chapter  to  be  a  char- 
acteristic of  natural  rights,  but  they  arise  in  every  case  from 
the  act  of  man  ;  that  is,  by  means  of  a  grant  either  express  or 
implied,  as  will  be  more  fully  explained  hereafter. 

Of  rights  of  way  there  are  two  kinds,  public  and  private. 
Public  rights  of  way  are  rights  of  passage  which 
private  every  individual  is  entitled  to  enjoy  for  the  pur- 
pose of  passing  from  one  locality  to  another  ;  ^vhile 
private  rights  of  way  are  rights  which  belong  to  a  particular 
individual  only  or  to  a  body  of  individuals,  either  for  the  pur- 
pose of  passing  generally,  or  for  the  purpose  of  passing  from 
a  particular  tenement  of  which  they  are  possessed.  Public 
rights  of  way  are  rights  which  all  persons  in  the  kingdom  are 
entitled  to  use  at  their  free  will  and  pleasure,  irrespectively 
of  any  estate  of  which  they  happen  to  be  owners,  and  even 
though  they  are  possessed  of  no  estates  whatever.  Hence  it 
follows  that  public  rights  of  way  are  rights  in  gross  and  not 
easements,  for  it  has  been  explained  that  rights  in  gross  are 
not  easements,  it  being  an  essential  characteristic  of  easements 
that  they  are  enjoyed  in  respect  of    a   dominant  tenement. 

1  Jones  V.  Percival,  5  Pick.  484.  See  Jennison  v.  AValker,  11  Gray, 
426. 


WAYS.  73 

For  a  similar  reason,  private  rights  of  way,  not  appurtenant 
to  a  dominant  tenement,  are  not  in  England  considered  ease- 
ments, but  rights  in  gross/ 

The  existence  of  a  right  of  way  over  land,  and  indeed,  of 
any  other  easement,  necessarily  operates  as  a  restric-  Effect  as 
tion  upon  the  landowner's  rights  in  the  soil  and  his  owier^of^^ 
freedom  of  user  ;  but  the  extent  of  the  restriction  '^^  soil, 
is  frequently  a  matter  of  great  importance,  as  upon  that  de- 
pends the  mode  in  which  the  landowner  is  entitled  to  use 
his  own  ground  ;  and  to  understand  rightly  how  far  a  right 
of  way  operates  as  i-estriction  upon  the  user  of  the  land,  it  is 
necessary  to  understand  the  precise  nature  of  a  right  of  way. 
For  this  purpose,  there  is  no  difference  in  principle  between  a 
public  and  a  private  right  of  way  ;  in  either  case  it  is  a  mere 
right  of  passing  over  the  soil  of  another  person  uninterrupt- 
edly, though  in  the  one  case  the  right  is  for  every  individual 
to  pass  while  in  the  other  it  is  for  a  particular  person  only. 
The  right  is  not  a  right  to  the  land^  nor  to  any  corporeal  in- 
terest in  the  land,  and  the  soil  is  in  no  way  the  property  of 
the  owner  of  the  right.  From  this  it  follows  that  as  long  as 
the  owner  of  the  right  of  way  is  not  prevented  enjoying  his 
easement,  he  has  no  right  to  prevent  the  landowner  doing  any- 
thing he  pleases  with  the  soil.^  In  the  case  of  The  Vestry  of 
St.  JN^ary,  Newington,  v.  Jacobs,*  the  question  arose  with  ref- 
erence to  a  public  right  of  way,  but  the  principle  involved  in 
the  case  is  equally  applicable  to  a  private  right.  The  re- 
spondent was  owner  of  freehold  premises  abutting  upon  the 
footway  by  the  side  of  the  street,  and  the  footway  was  paved 
with  flag  stones.  To  reach  his  premises  the  respondent  was 
obliged  to  cross  the  flagged  footway  and  by  conveying  heavy 
machinery  over  it  broke  up  the  stones  ;  the  vestry  would  not 
allow  him  to  take  up  the  flag  stones  and  pave  the  footway 
differently  before  his  gate,  but  contended  that  as  the  footway 

J  Ackroyd  v.  Smith,  10  C.  B.  164  ;  19  L.  J.  C,  P.  315;  Rangely  v.  Mid- 
land Railway  Company,  L.  R.  3  Ch.  App.  per  Lord  Cairns,  L.  J.,  at  p.  310  ; 
37  L.  J.  Ch.  313;  Thorpe  v.  Brumfitt,  L.  R.  8  Ch.  App.  650. 

1  See  Perley  v.  Chandler,  6  Mass.  454;  Adams  v.  Emerson,  6  Pick'.  57. 

^  L.  R.  7  Q.  B.  47  ;  41  L.  J.  M.  C.  72  ;  Rex  v.  JollifEe,  2  T.  R.  90. 


74  NATURE   OF   EASEMENTS. 

was  dedicated  to  the  public  as  a  footway  it  could  not  be  used 
by  the  respondent,  though  he  was  admitted  to  be  owner  of 
the  soil,  for  any  purpose  other  than  a  footway,  as,  for  instance, 
the  passage  of  machinery.  It  was  decided,  however,  that  his 
user  was  lawful,  and  the  principles  upon  which  the  respective 
rights  of  the  public  and  the  owner  of  the  soil  of  the  highway 
depended  and  the  nature  of  a  right  of  way  were  explained  by 
the  court.  The  right  of  the  respondent,  it  was  said,  depended 
upon  the  nature  and  extent  of  the  rights  acquired  by  the  pub- 
lic over  the  footway  in  question,  either  at  common  law  or 
under  the  Highway  Acts,  or  the  Metropolis  Local  Manage- 
ment Act.  With  these  acts  it  is  not  necessary  to  deal  in  this 
treatise,  but  as  regards  the  common  law  it  was  continued  : 
"  The  owner  who  dedicates  to  public  use  as  a  highway  a  por- 
tion of  his  land,  parts  with  no  other  right  than  a  right  of  pas- 
sage to  the  public  over  the  land  so  dedicated,  and  may  exer- 
cise all  other  rights  of  ownership,  not  inconsistent  therewith  ; 
and  the  appropriation  made  to  and  adopted  by  the  public  of 
a  part  of  the  street  to  one  kind  of  passage,  and  another  part 
to  another,  does  not  deprive  him  of  any  rights  as  owner  of  the 
land  which  are  not  inconsistent  with  the  right  of  passage  by 
the  public.  If  this  were  not  so,  the  owner  of  a  large  estate 
having  dedicated  a  portion  of  his  land  to  the  use  of  the  pub- 
lic as  a  roadway,  and  thej'^  or  the  persons  representing  them, 
having  raised  a  footpath  on  one  side  of  such  roadway,  for  their 
own  mgre  convenient  use  thereof,  would  after  a  lapse  of  time, 
be  so  bound  by  this  convenient  arrangement  of  such  roadway 
as  to  be  unable  to  open  a  new  gateway  or  entrance  to  his  land 
from  such  roadway  without  being  liable  to  be  convicted  under 
the  provision  of  the  Highway  Acts.  If  this  were  really  the 
law,  the  result  would  be  most  serious  to  owners  who  have 
dedicated  or  may  dedicate  roadways  to  the  public ;  and  in 
towns  would  to  a  great  extent  prevent  the  owners  of  houses 
and  buildings  from  changing  their  character  and  use  to  any 
purpose  of  business,  which  could  not  be  accomplished  without 
the  use  of  a  horse,  or  cart,  or  carriage.  That  such  is  not  the 
law  appears  to  us  to  be  the  result  both  of  principle  and  au- 
thority ;  and  we  think  that  the  provisions  of  the  Highway 


WAYS.  .  75 

Acts  and  the  Metropolis  Local  Management  Act,  so  far  as 
they  apply  to  roads  or  streets,  are  subordinate  to  the  para- 
mount rights  reserved  by  the  owner.  We  do  not  deny  that  the 
owner  cannot  derogate  from  the  grant  of  the  roadway  made 
by  him  to  the  public,  and  cannot  do  anything  that  will  really 
and  substantially  interfere  with  the  right  of  passage  by  the 
public." 

Although  public  rights  of  way  are  not  easements,  several  or 

many  persons  may  have  rights  of  way  over  one  and    ^ 

■^   ^  .  "^  .         Coexist- 

the  same  road  which    are    easements  —  as,  for   in-    ing  rights 

stance,  in  the  case  of  a  collection  of  houses  with  one  °  ^^  ^* 
private  road  leading  to  them  over  which  all  the  occupants 
have  a  right  to  pass ;  for  there  can  be  no  doubt  that  as  those 
rights  exist  in  respect  of  the  houses,  they  are  easements, 
though  possessed  by  more  persons  than  one.  An  instance  of 
a  private  way  shared  between  several  persons  may  be  found 
in  the  case  of  Semple  v.  The  London  and  Birmingham  Rail- 
way Company,'  in  which  a  road  is  mentioned  leading  to  sev- 
eral wharves  which  the  lessees  of  the  wharves  had  covenanted 
jointly  to  keep  in  repair ;  it  was  held  that  the  road  was  pri- 
vate, not  public,  and  there  can  be  no  doubt  that  the  rights  of 
way  belonging  to  the  owners  of  the  wharves  were  easements. 

It  has  been  argued  that  a  public  and  private  right  of  way 
over  the  same  soil  cannot  coexist,  for  that  if  a  pub.   p^^Jlig  ^^y 
lie  right  of  way  exists,  any  user  of  a  passage  over   over  pre- 
that  soil  by  an  individual  must  be  in  exercise  of  his    private 
right  as  one  of  the  public,  and  that   a  preexisting 
private  right  of  way  is  merged  and  extinguished  if  a  public 
right  is  created  over  the  same  soil  as  the  private  way.     To 
some  extent  this  is  true,  for  there  can  be  no  doubt  that  if  a 
public  right  of  way  over  a  road  exists,  no  private  right  can  be 
subsequently  acquired  over  the  same  spot,™  afid  under  certain 
circumstances,  undoubtedly  a  private  right  may  be  merged  in 
a  subsequently  created  public  right."     It  is,  however,  equally 

'  9  Sim.  209.     See,  also,  in  Duncan  v.  Louch,  6  Q.  B.  904  ;  14  L.  J.  Q.  B. 
185. 
"*  Regina  v.  Chorley,  12  Q.  B.  515,     See  Nash  v.  Peden,  1  Speers,  22. 
"  Regina  v.  Chorley,  12  Q.  B.  515  ;  Chichester  v.  Lethridge,  Willes,  71. 


76  ,  NATURE   OF   EASEMENTS. 

clear  that  if  a  person  has  a  private  right  of  way,  his  right  is 
not  necessarily  and  in  every  case  extinguished  if  the  public 
gains  a  right  to  use  the  same  road,  and  the  owner  of  the  pri- 
vate right  may  at  any  time  assert  and  rely  upon  that  right  to 
justify  his  user  of  the  way  without  resorting  to  the  public 
right ;  the  power  to  do  so  may  indeed  be  of  great  importance 
to  him,  for  the  public  right  may  be  disputed,  or  it  may  pos- 
sibly, for  other  reasons,  not  form  a  justification  for  an  act  for 
which  he  is  sued." 

Reference  has  already  been  made  to  easements  of  necessity, 
Wavs  of  ^^  being  easements  to  which  an  owner  of  land  gen- 
necessity,  erally  becomes  entitled  if  his  land  is  so  situated  that, 
but  for  the  right  to  the  easement,  it  would  be  inaccessible  and 
worthless.  The  most  common  easements  of  this  class  are 
ways  of  necessity,  which  are  rights  given  to  the  owner  of  land 
to  pass  over  the  land  of  his  neighbor  if  he  has  no  other  means 
of  access  to  his  own  soil.  It  will  be  seen  when  the  mode  of 
acquisition  of  these  rights  is  discussed,^  that  it  is  not  in  every 

"  Allen  V.  Orniond,  8  East,  3;  Regina  v.  Cliorley,  12  Q.  B.  515;  Dun- 
can V.  Louch,  6  Q.  B.  915;  Brownlow  v.  Tomlinson,  1  M.  &  G.  per  Lord 
Denman,  C.  J.,  at  nisi  prius,  at  p.  486.  Questions  as  to  liability  to  repair 
have  occasionally  arisen  through  public  ways  having  been  acquired  over 
private  roads.  Thus  in  Reg.  v.  The  Inhabitants  of  Bradfield,  L.  R.  9  Q. 
B.  552;  43  L.  J,  M.  C.  155,  a  public  right  had  by  user  been  gained  over 
a  private  way  set  out  under  an  old  inclosure  award,  whereby  it  was  ex- 
pressly provided  that  the  road  should  at  all  times,  and  forever  thereafter, 
be  repaired  and  kept  in  repair  by  the  owners  or  occupiers  for  the  time 
being  of  the  land  next  adjoining  the  road,  and  the  question  was,  who  was 
to  do  the  repairs,  the  parish,  or  the  persons  named  in  the  award.  It  was 
decided  the  parish  was  liable ;  for  that  though  the  fact  that  the  road  was 
originally  set  out  under  the  award,  as  a  private  road  to  be  used  and  re- 
paired by  particular  individuals,  was  inconsistent  with  its  then  being  a 
highway,  yet  thei'e  was  nothing  to  prevent  the  owners  of  the  soil  from 
dedicating  the  road  to  the  public,  so  as  to  make  it  a  public  highway,  and 
that  the  rule  of  the  common  law  is  that  when  once  a  road  becomes  a  pub- 
lic highway  the  parish  or  township  must  repair  it.  It  may  be  remarked 
that  in  this  case  it  must  have  been  assumed  that  the  private  easement  was 
not  extinguished  by  or  merged  in  the  public  right  of  way,  for  if.it  had  been 
it  could  not  have  been  contended  that  the  liability  of  the  owners  or  occu- 
piers of  the  adjoining  land  to  repair  under  the  award  remained. 

P  See  post,  chapter  II.  title  Ways. 


MISCELLANEOUS   RIGHTS.  77 

possible  case  of  inaccessibility  that  a  way  of  necessity  is  given 
to  the  owner  of  land,  and  it  will  also  appear  over  whose  land 
and  in  what  direction  ^  a  way  of  necessity  may  be  acquired, 
but  it  would  be  out  of  place  to  inquire  into  these  points 
now. 

But  one  point  remains  to  be  mentioned  with  regard  to  the 
nature  of  rights  of  way  —  that  is,  they  may  be  gen-    Rights  of 
eral  in  their  character,  or,  in  other  words,  usable  for   g^rai'of^"' 
all  purposes,  or  they  may  be  limited  to  particular   limited. 
purposes.     Thus  a  right  of  way  may  be  limited  for  agricultu- 
ral purposes  only,  and  the  existence  of  such  a  right  is  not  of 
itself  sufficient  evidence  of  a  general  right  for  all  purposes  — 
as  to  carry  lime  or  stone  from  a  newly-opened  quarry j*"  or  it 
may  be  limited  for  the  purpose  of  driving  cattle  or  carriages, 
or  it  may  be  a  horse-way,  or  merely  a  way  for  foot  passen- 
gers,*  but  the  extent  of  the  right  must  always  depend  upon 
the  words  of  the  instrument  creating  the  right,  if  any  written 
instrument  exists  ;  or  it  must  be  measured  by  the  accustomed 
user,  if  the  right  has  been  gained  by  prescription.' 

MISCELLANEOUS    RIGHTS. 

Besides  the  above-mentioned  easements  which  a  landowner 
may  lawfully  acquire  in  connection  with  the  air,  the   Attempts 
light,  and   water,  and    the    rights    to    support    and    to  create 

.  1  •   1  •    1  •       •    1  c     1  new  species 

ways,  respecting  which  special  principles  of  law  of  ease- 
have  sprung  up,  either  from  statutory  enactment  or 
from  custom,  attempts  have  been  made  to  establish  other  ease- 
ments which  the  law  will  not  recognize,  and  to  annex  them  to 
land.  Without  wishing  to  lay  down  that  there  can  be  no 
other  easements  than  those  above-mentioned,  it  was  pointed 
out  in  the  first  section  of  this  chapter  that  the  law  will  not 
permit  a  landowner  .to  create  easements  of  a  novel  character 

5  See  post,  chapters  II.  and  III.  title  Ways. 

*■  Jackson  v.  Stacey,  Holt  N.  P.  455. 

*  Ballard  v.  Dyson,  1  Taunt.  279  ;  Ardley  v.  St.  Pancras  Guardians,  39 
L.  J.  Cb.  871  (not  elsewhere  reported).  See  Tyler  v.  Sturdy,  108  Mass. 
196. 

'  See  post,  chapter  III.  title  Ways. 


78  NATURE   OF  EASEMENTS. 

and  annex  them  to  the  soil ;  and  that  though  any  such  right 
which  he  may  confer  upon  another  person  may  be  vahd  and 
obhgatory  upon  him  personally  so  long  as  he  continues  owner 
of  the  quasi-servient  tenement,  so  that  on  disturbance  he  may 
be  sued  for  breach  of  covenant,  yet  that  those  rights  are  void 
as  against  other  persons  than  the  grantor,  and  will  not  entitle 
the  grantee  to  sue  in  his  own  name  for  any  disturbance  of  his 
right." 

Still  there  are  some  other  well  known  easements,  or  rights  so 
similar  as  generally  to  be  called  easements  ;  and  the  following 
have  been  considered  easements,  namely,  a  right  of  piling  arti- 
cles of  merchandise  in  boxes,  bales,  &c.,  on  another's  land,  and 
of  drawing  them  into  a  store  by  a  windlass  over  the  way ;  for 
swinging  shutters  over  the  same,  and  for  other  similar  pur- 
poses ;  ^  a  right  to  use  land  as  a  mill-yard.^ 

So  an  easement  or  right  of  eaves-drip  may  be  acquired  in 
the  land  of  another,  by  grant  or  prescription  ;  ^  and  it  is  al- 
ways a  question  of  fact  for  the  jury  whether  the  use  was  per- 
missive or  adverse.^  But  even  if  an  easement  or  right  of 
drip  is  thus  created  by  prescription,  this    does  not  of   itself 

"  Ante,  p.  21.  The  following  rights  appear  to  have  been  treated  as 
easements  :  A  right  to  fasten  clothes  lines  and  dry  linen.  Drewell  t;. 
Towler,  3  B.  &  Ad.  735.  A  right  to  nail  trees  to  a  wall.  Hawkins  v. 
Wallis,  2  Wils.  K.  B.  173.  A  right  to  use  another's  chimney  for  convey- 
ance of  smoke.  Hervey  v.  Smith,  22  Beav.  299;  1  Kay  &  J.  389.  A  right 
to  have  a  public-house  sign-post  on  a  common  opposite  the  house.  Hoare 
V.  The  Metropolitan  Board  of  Works,  L.  R.  9  Q.  B.  296;  43  L.  J.  M.  C. 
65.  ^  right  of  eaves  dropping  on  to  a  neighbor's  land.  Harvey  v.  AYal- 
ters,'L.  R.  8  C.  P.  162;  42  L.  J.  C.  P.  105.  A  riglit  to  tether  horses. 
Johnson  v.  Thoroughgood,  Hob.  64.  The  latter  right  may  have  been  a 
species  of  right  of  common,  for  obtaining  pasturage  was  the  oljject  of  the 
privilege.  See,  also.  Underwood  v.  Burrows,  7  C.  &  P.  26.  An  easement 
to  have  a  hatch  in  another  man's  soil.  Wood  v.  Hewett,  8  Q.  B.  913.  A 
right  to  maintain  a  sign-board  on  another  person's  house.  Moody  v,  Steg- 
gles,  41  Law  T.  Rep.  25  (1879),  a  very  recent  and  valuable  case. 

^  Richardson  v.  Pond,  15  Gray,  387,  as  stated  in  2  Allen,  577. 

2  Gurney  v.  Ford,  2  Allen,  576. 

8  Smith  V.  Smith,  110  Mass.  304;  Harvey  v.  Walters,  L.  R.  8  C.  P.  162; 
Neale  v.  Seeley,  4  7  Barb.  316. 

*  Carbrey  v.  Willis,  7  Allen,  364;  Randall  v.  Sanderson,  111  Mass.  119. 


PROSPECT.  79 

give  the  claimant  a  right  to  the  land  itself  under  the  eaves,  or 
prevent  the  landowner  from  building  on  the  land,  if  he  can 
do  so  without  interfering  with  the  eaves.^ 

The  interest  of  the  separate  owners  of  pews  in  a  church  or 
meeting-house,  the  fee  of  which  and  of  the  soil  is  in  the  society 
or  corporation,  is  usually  also  termed  an  easement.^ 

One  of  two  adjoining  landowners  may  by  prescription  or 
contract  acquire  a  right  or  easement  in  the  other's  land,  that 
the  owner  thereof  shall  alone  maintain  the  division  fence  be- 
tween them.^ 

The  right  acquired  by  a  chartered  gas  company  to  lay  pipes 
in  the  public  streets  is  an  easement,  and  not  a  mere  license.^ 

One  of  the  principal  of  these  rights  which  was  asserted 
in  connection  with  land  at  a  very  early  period,  but   , 

1-11         1  11  .  •  •       1  •    1         ,  Uninter- 

which  the  law  would  not  sanction,  is  the  right  that  mpted 
the  prospect  or  view  should  not  be  impeded  by  the  P''°*P^'^ ' 
erection  of  buildings.  The  legal  possibility  of  a  right  to  un- 
disturbed prospect  was  discussed  in  Aldred's  case,^  which  is 
one  of  the  oldest  recorded,  and  in  which  the  point  was  raised. 
It  was  in  that  case  laid  down  as  law  by  Wray,  C.  J.,  "  That 
for  stopping  as  well  of  the  wholesome  air  as  of  light,  an  action 
lies,  and  damages  shall  be  recovered  for  them,  for  both  are 
necessary,''^  ....  but  "  that  for  prospect  which  is  a  matter 
only  of  delight^  and  not  of  necessity,  no  action  lies  for  stopping 
thereof,  and  yet  it  is  a  great  commendation  of  a  house  if  it 
has  a  long  and  large  prospect."  .  .  .  .  "  But  the  law  don't 
give  an  action  for  such  things  of  delight."  A  more  recent 
case  on  the  subject  is  The  Attorney  General  at  the  relation  of 

1  Keats  V.  Hugo,  115  Mass.  204. 

2  First  Baptist  Society  v.  Grant,  69  Me.  245;  Union  House  v.  Rowell, 
66  Me.  400;  Hinde  v.  Chorlton,  L.  R.  2  C.  P.  104. 

8  See  Rust  v.  Low,  6  Mass.  90 ;  Barber  v.  Wliitely,  34  L.  J.  N.  S.  Q.  B. 
212  ;  Adams  v.  Van  Alstyne,  25  N.  Y.  237;  Heath  v.  Ricker,  2  Me.  72. 
That  the  covenant  of  a  grantor  to  keep  up  fences  between  his  remaining 
land  and  the  land  granted,  may  run  with  the  land,  and  bind  his  grantee, 
see  Bronson  v.  Coffin,  118  Mass.  156;  Easter  v.  Little  Miami  Railroad,  14 
Ohio  St.  48,  where  the  subject  is  carefully  considered. 

4  Providence  Gas  Co.  v.  Thurber,  2  R.  L  15.  See  Harback  v.  Boston, 
10  Cush.  295. 

^  9  Coke's  Rep.  58. 


80  NATURE   OF   EASEMENTS. 

Gray's  Inn  Society  v.  Doughty ,'"  in  which  a  motion  was  made 
in  the  Court  of  Chancery  before  answer,  to  stop  proceeding 
with  the  erection  of  certain  buildings  which  would  have  the 
effect  of  intercepting  the  prospect  from  Gray's  Inn  Gardens. 
The  interference  of  the  court  was  asked  on  the  ground  of  dis- 
turbance of  what  was  alleged  to  be  a  right  to  the  prospect, 
claimed  by  reason  of  long  enjojnnent,  and  it  was  said  that  the 
right  had  been  previously  admitted  by  parties  interested  in 
disputing  it,  and  by  a  court  of  equity.  The  admission  by  the 
court  of  equity  appeared  to  have  been  by  Lord  Jetferies,  who 
had  made  several  orders  on  petition  to  restrain  building  so 
as  to  intercept  this  prospect ;  but  the  lord  chancellor  (Lord 
Hardvvicke)  refused  to  interfere  in  a  summary  way,  saying 
that  he  knew  of  no  general  rule  of  common  law  which  war- 
rants or  says  that  building  so  as  to  stop  another's  prospect  is 
a  nuisance  ;  for  if  such  building  had  been  a  nuisance  there 
could  be  n  >  great  towns,  and  he  must  grant  injunctions  to  re- 
strain all  new  buildings  in  London.  As  for  the  orders  of  Lord 
Jefferies,  his  lordship  disposed  of  them  in  a  very  summary 
way  by  stating  that  that  learned  judge  was  too  apt  to  do 
things  in  an  extraordinary  manner,  and  that  they  were  made 
on  petition  without  a  bill  filed,  and  he  therefore  laid  them  out 
of  the  case  ;  but  he  added  that  such  a  right  might  be  con- 
ferred by  agreement.  The  question  whether  a  right  to  un- 
disturbed prospect  could  be  conferred  by  agreement  was  not 
before  Lord  Hardwicke,  when  he  delivered  this  judgment, 
and  it  is  thought  that  if  it  had  been,  he  would  not,  after  due 
deliberation,  have  laid  down  that  such  a  right  could  even  be 
conferred  by  agreement  or  grant,  so  as  to  create  an  easement, 
and  annex  it  to  the  land  forever.  An  agreement  not  to  ob- 
struct the  prospect  is  undoubtedly  binding  upon  the  parties 
to  the  agreement  ;  cases  in  which  owners  of  land  bind  tliem- 
selves  by  covenant  not  to  build  on  the  land,  or  to  build  in  a 
particular  manner  only,  for  tlie  benefit  of  adjoining  houses, 
are  of  frequent  occurrence,  and  men  may  enter  into  such  cove- 
nants just  as  they  may  bind  themselves  not  to  carry  on  a  par- 

">  2  Ves.  Sr.  453.     See,  also,  Wells  v.  Ody,  7  C.  &  P.  410,  and  Kaowles 
V.  Richardson,  1  Mod.  55. 


PROSPECT.  81 

ticular  trade.  Covenants  of  this  kind  are  made,  either  with 
a  view  to  maintaining  uniformity  in  a  row  of  houses,  or  of 
preventing  injury  by  spoihng  the  prospect  from  the  windows, 
and  in  many  instances  these  covenants  run  with  the  land ;  but 
it  is  clear  no  easements  are  thereby  conferred.  One  test  of 
the  correctness  of  this  view  is,  that  if  the  prospect  is  inter- 
rupted in  defiance  of  the  covenant,  no  action  can  be  main- 
tained for  a  tortious  injury  to  a  legal  right,  but  the  action 
must  be  brought  for  breach  of  the  covenant.^ 

In  America  this  point  arose  in  the  recent  case  of  Jenks  v. 
Williams,^  in  which  the  defendant  constructed  a  bow  window 
on  the  front  of  his  house  on  Mt.  Vernon  Street,  Boston,  pro- 
jecting more  than  one  foot,  in  violation  of  St.  1799,  c.  31, 
and  a  city  ordinance  of  Boston  ;  and  the  adjoining  owner 
brought  a  bill  in  equity  for  an  injunction  on  the  sole  ground 
that  it  would  obstruct  the  view  from  the  plaintiff's  windows, 
and  diminish  the  light  and  air  entering  therein  ;  but  the  in- 
junction was  refused  on  the  ground  that  the  statute  and  city 
ordinance  were  intended  solely  for  the  benefit  of  the  public, 
and  gave  no  private  right  of  action  to  any  individual,  and  as 
the  plaintiff  did  not  claim  any  grant  of  or  agreement  for  an 
unobstructed  view,  a  court  of  equity  would  not  interfere, 
unless  the  injury  amounted  to  a  nuisance,  which  was  not 
claimed. 

But  it  is  well  settled  in  America,  also,  that  such  a  right  to 
uninterrupted  prospect  may  be  acquired  by  grant  or  reserva- 
tion thereof.  A  grant  of  land,  with  a  clause  therein  that 
no  building  shall  be  erected  upon  it,  or  only  in  a  certain  posi- 
tion, creates  an  easement  thferein,  or  a  servitude  in  the  nature 
of  an  easement ;  either  in  favor  of  the  grantor  personally,  or 
as  appurtenant  to  his  remaining  land  ;  and  the  relative  situa- 
tion of  the  land  granted,  with  reference  to  that  retained,  may 

"^  Western  v.  M'Dermott,  L.  R.  2  Ch.  72;  35  L.  J.  Ch.  190;  Lord  Man- 
ners V.  Johnson,  1  Ch.  D.  673;  45  L.  J.  Ch.  404;  Tulk  v.  Moxhay,  2  Ph. 
774;  Coles  v.  Suns,  5  De  G.,  M.  &  G.  1;  23  L.  J.  Ch.  258;  Piggott  v.  Strat- 
ton,  Johns.  341 ;  29  L.  J.  Ch.  1 ;  1  De  G.,  F.  &  J.  33. 

1  115  Mass.  217  (1874),  citing  also  Butt  v.  Imperial  Gas.  Co.  L.  R.  2  Ch. 
App.  158. 

6 


82  NATURE   OF   EASEMENTS. 

be  taken  into  consideration  in  determining  this  latter  ques- 
tion ;i  which  right  may  be  protected  by  a  bill  in  equity  against 
the  grantee.^ 

Somewhat  analogous  to  a  view  from  a  house  is  a  view  of  a 
house  gained  by  persons  approaching  along  a  road, 
shop-win-     In  cases  of  shops  and  places  of   business,  it  is  fre- 
^"^^'  quently  a  matter  of  considerable  moment  to  the  shop- 

keeper that  people  shall  catch  sight  of  the  shop  window,  or  of 
an  advertising  board,  as  they  walk  along  the  road,  and  this 
circumstance  has  given  rise  to  several  lawsuits,  when  the 
view  has  been  obstructed  by  the  owner  of  premises  adjoining 
a  shop.  The  courts,  however,  will  not  recognize  a  right  of 
this  kind.  In  the  case  of  Smith  v.  Owen,^  the  plaintiff  was 
owner  of  a  shop  in  Bond  Street,  and  the  defendant,  who  was 
owner  of  the  adjoining  premises,  began  to  make  alterations 
which  it  was  anticipated  would  have  the  effect  of  preventing 
the  shop  of  the  plaintiff  being  seen  so  far  down  the  street  as 
usual.  Sir  W.  Page  Wood,  V.  C,  refused  to  interfere  on 
this  ground,  for  he  said  that  all  that  could  be  complained  of 
was  that  persons  could  not  see  the  goods  so  soon  as  they 
might  if  the  alterations  objected  to  had  not  been  made  ;  that 
when  they  came  in  front  of  the  shop  the  goods  would  be  seen 
just  as  well  as  before.  So,  he  added,  if  a  sign  were  hung  up  in 
front  of  a  shop,  such  as  pawnbrokers'  balls,  which  could  be 
seen  for  a  long  distance,  there  was  nothing  to  prevent  a  neigh- 
bor building  on  his  own  ground  in  such  a  way  as  to  obstruct 
the  distant  view  of  such  a  sign. 

There  is  a  nisi  prius  decision,  however,  which  is  at  variance 
with  the  above  principle,  and  which  seems  to  have  been  over- 
looked, or,  at  all  events,  has  not  been  cited  in  the  courts  dur- 
ing the  hearing  of  the  recent  cases.     In  the  case  of  Riviere  v. 

1  Peck  y.  Conway,  119  Mass.  546.  See  Hubbell  v.  Warren,  8  Allen, 
173;  Badger  v.  Boardman,  16  Gray,  559. 

2  Whitney  v.  Union  Railway  Co.  11  Gray,  359;  Pai'ker  v.  Nightingale, 
6  Allen,  341  ;  Winfield  v.  Henning,  6  C.  E.  Green,  190;  Brewer  v.  Mar- 
shall, 4  lb.  543. 

y  35  L.  J.  Ch.  317  (not  elsewhere  reported).  See,  also,  Butt  v.  Imperial 
Gas  Company,  L.  R.  2  Ch.  App.  158. 


PROSPECT.  83 

Bower/  the  plaintiff  was  proprietor  of  a  house  in  Oxford 
Street,  which  he  divided  into  two  tenements,  one  of  which  he 
retained  in  his  own  occupation,  and  used  as  a  gunsmith's  shop, 
and  that  shop  had  a  window  projecting,  by  means  of  which  his 
goods  coukl  be  displaj'ed  by  a  side  view  to  passengers  going 
up  and  down  the  street.  After  the  window  had  been  con- 
structed the  plaintiff  let  the  adjoining  tenement  to  the  de- 
fendant who  was  a  bookseller  and  stationer.  The  defendant 
was  in  the  habit  of  fixing  to  his  door-post  a  movable  case 
containing  books  which  came  close  to  the  plaintiff's  window, 
and  had  the  effect  of  entirely  obstructing  the  view  of  the 
goods  on  one  side  of  the  window.  Although  it  was  urged 
that  as  no  action  would  lie  for  the  obstruction  of  a  prospect, 
so  no  action  would  lie  for  the  obstruction  of  the  shop  window 
from  the  view  of  persons  approaching,  yet  Abbott,  C.  J.,  held 
that  the  action  was  maintainable  against  the  defendant,  who 
held  as  tenant,  as  the  window,  although  of  recent  construction, 
existed  at  the  time  of  the  demise  ;  and  this  was  so  deter- 
mined, although  no  stipulation  was  made  at  the  commence- 
ment of  the  tenancy.  This  decision  was  evidently  given  on 
the  ground  that,  as  the  window  existed  at  the  time  of  the 
demise,  a  grant  of  right  to  unobstructed  view,  or  a  covenant 
by  the  tenant  that  he  would  not  obstruct,  was  to  be  implied,  in 
the  same  way  as  it  had  been  held  in  some  old  cases  that,  if  the 
owner  of  a  house  sold  the  adjoining  land,  the  purchaser  could 
not  build  and  obstruct  his  light  ;  but  it  will  be  seen  hereafter 
that,  though  there  is  some  conflict  of  authority  on  the  point, 
the  law  is  now  settled  that  the  vendor  of  the  land  would  have 
no  right  to  light  for  his  house  reserved  by  implied  grant  in 
the  absence  of  express  stipulation  ;  for  the  same  reason,  no 
grant  or  covenant  would  now  be  implied  in  a  case  similar  to 
that  above  mentioned,  by  which  the  bookseller  would  be  re- 
strained from  obstructing  the  gunsmith's  window.  From  the 
analogous  case  of  a  grant  of  right  to  light  being  implied 
against  a  lessor  if  he  lets  a  house  reserving  the  adjoining  land, 
it  may  still  be  argued  that  a  right  to  unobstructed  view  by 
the  public  is  impliedly  granted  if  the  owner  of  the  house  lets 
'  Ry.  &  Moo.  24.    See,  also,  Brumraell  v.  Wharia,  12  Grant's  Cb.  R.  283. 


84  NATURE  OF   EASEMENTS. 

it  with  an  existing  shop  window  of  which  the  public  can  ob- 
tain a  view  while  approaching  along  the  street. 

Another  right  to  which  a  claim  has  been  made,  but  which 
is  not  recognized  by  the  law,  is  a  right  to  undis- 
turbed pri-   turbed  privacy.     There  can  be  no  dispute  now  that 
^^'^^'  such  a  right  is  not  recognized  by  law,  althougli  an 

attempt  has  been  made  to  establish  an  easement  of  that  kind. 
On  this  point  Kindersley,  V.  C,  said:  "  With  regard  to  the 
question  of  privacy,  no  doubt  the  owner  of  a  house  would 
prefer  tluit  a  neighbor  should  not  have  the  right  of  look- 
ing into  his  windows  or  yard  ;  but  neither  this  court,  nor  a 
court  of  law,  will  interfere  on  the  mere  ground  of  invasion 
of  privacy ;  and  a  party  has  a  right  even  to  open  new  win- 
dows, although  he  is  thereby  enabled  to  overlook  his  neigh- 
bor's premises,  and  so  interfering,  perhaps,  with  his  com- 
fort." "  So,  again,  in  an  old  case  of  Chandler  v.  Thompson,* 
it  was  said  by  Le  Blanc,  J.,  at  nisi  prius,  that  although  an 
action  for  opening  a  window  to  disturb  the  plaintiff's  privacy 
•was  to  be  read  of  in  the  books,  he  had  never  known  such  an 
action  maintained,  and  when  he  was  in  the  Common  Pleas  he 
had  heard  it  laid  down  by  Eyre,  C.  J.,  that  such  an  action 
did  not  lie,  and  that  the  only  remedy  was  to  build  on  the  ad- 
joining laud  opi^osite  to  the  offensive  window.  Where,  how- 
ever, there  was  a  covenant  not  to  build  beyond  a  certain  line, 
and  the  covenantor  built  some  bay  windows  which  projected 
beyond  that  line,  and  by  means  of  them  the  covenantee's 
privacy  was  disturbed.  Hall,  V.  C,  when  granting  an  injunc- 
tion to  prevent  the  continuance  of  the  windows  on  the  ground 
that  the  covenant  was  broken,  said :  "But  if  it  had  been 
necessary  for  me,  in  determining  this  case,  to  rest  my  judg- 
ment upon  the  question  whether  or  not  there  was  damage  to 
the  plaintiff  arising  from  the  erection  of  these  windows,  I 
should  upon  the  balance  of  evidence  come  to  the  conclusion 
that  there  was.     It  is  then  said  that  these  houses  are  more 

a  Turner  v.  Spooner,  30  L.  J.  Ch.  at  p.  803  ;  1  Dr.  &  Sm.  467. 

*  3  Camp.  80.  Interruption  of  privacy  was  expressly  lield  not  to  confer 
a  right  of  action  in  Re  Penny  and  the  South  Eastern  Railway  Company, 
7  E.  &  B.  660 ;  26  L.  J.  Q.  B.  225. 


PRIVACY.  85 

ornamental  than  the  others.  However  that  may  be,  I  think 
being  partially  overlooked  from  the  first  floor  rooms,  even  at 
such  a  distance,  particularly  with  reference  to  the  house  No.  2, 
is  enough  materially  to  detract  from  the  value  of  the  plain- 
tiff's house.  It  is  said  there  is  no  covenant  as  to  privacy ;  but 
privacy  will  be  interfered  with,  and  there  is  a  covenant  that 
the  act  shall  not  be  done,  the  doing  of  which  causes  the  inva- 
sion of  privacy,  and  there  is  accordingly  damage  and  injury 
in  respect  of  which  relief  ought  to  be  granted."  '^ 

°  Lord  Manners  v.  Johnson,  1  Ch.  D.  at  p.  680. 


CHAPTER   II. 

ON   ACQUISITION   OF  EASEIMENTS. 

Having  in  the  previous  chapter  explained  the  nature  of, 
and  the  distinction  between,  Easements  and  Natural  Rights, 
both  with  reference  to  those  characteristics  which  are  common 
to  all,  as  well  as  those  which  are  peculiar  to  particular  kinds 
of  easements,  it  is  proposed  in  the  present  chapter  to  inquire 
into  the  different  modes  by  which  easements  may  be  created 
and  acquired,  and,  following  the  same  order  as  before,  first  to 
consider  the  several  modes  of  acquisition  as  they  relate  to 
easements  generally,  and  afterwards  the  principles  of  law 
which  relate  to  the  modes  of  acquiring  easements  of  particu- 
lar classes. 

Sect.  1.  —  On  Acquisition  of  Easements  generally. 
In  considering  the  acquisition  of  easements,  a  material  ef- 
Distinction   ^^^^  °^  ^^^  distinction  between  Easements  and  Nat- 
between       yr^l   Rights   is  to  be   noticed.     Easements   can  be 

easements  " 

and  nat-  Created  and  acquired  only  by  the  act  of  man, 
ura  rig  s.  ^jjgj,g^g  Natural  Rights  are  incident  to  land,  and 
to  them  the  owner  of  land  has  as  much  right  as  he  has  to  the 
land  itself,  without  the  direct  intervention  of  human  agency 
—  that  is,  without  any  act  of  creation  and  gift  by  the  servi- 
ent owner,  and  without  any  act  of  acquisition  on  his  own 
part.  It  is  quite  true  that  the  act  by  which  particular  ease- 
ments are  created  and  acquired  in  many  cases  never  actually 
takes  place,  but  is  merely  implied ;  it  will  be  seen,  however, 
that  an  act  of  creation  is  never  implied  unless  there  is  some 
reason  manifest  from  the  action  of  the  parties,  or  from  sur- 
rounding circumstances,  why  such  an  act  should  be  imphed, 
and  why  it  should  be  supposed  that  the  act  really  occurred, 


EASEMENTS   GENERALLY.  87 

although  no  evidence  of  its  occurrence  actually  exists.  Thus, 
easements  may  be  created  by  grant,  but  under  certain  cir- 
cumstances a  grant  of  the  right  will  be  impHed,  although  no 
trace  of  the  making  of  such  a  grant  can  actually  be  shown  ; 
while,  on  the  other  hand,  no  grant  can  be  implied,  unless  such 
an  implication  is  rendered  reasonable  by  surrounding  circum- 
stances, or  the  acts  of  the  parties. 

For  all  practical  purposes,  there  are  five  modes  by  which 
Easements,  as    distinguished  from  Natural    Rights,    -j^^^^^^  ^f 
may  be    acquired:    they  are — 1.  Under    a   grant:    creation 

"'  _        -^  •'  ,  '^  and  acqui- 

2.  By  virtue  of  an  act  of  parliament ;  3.  Under  a  sition  of 
devise ;  4.  By  prescription  ;  5.  Under  a  custom. 
Theoretically,  it  is  a  question  whether  all  these  modes  of  ac- 
quisition are  not  identical,  that  is,  whether  the  acquisition  does 
not  in  each  case  take  effect  from  a  grant  by  the  servient 
owner,  either  express  or  implied  ;  and  in  support  of  this  the- 
ory it  is  to  be  remarked  that  Lord  Cairns,  L.  J.,  in  speaking 
of  the  power  supposed  by  a  railway  company  to  have  been 
given  them  by  act  of  parHament  to  set  out  a  footpath  over 
land  they  did  not  possess,  said : "  "  I  will  assume,  in  the 
first  place,  that  that  is  a  coi-rect  expression,  and  that  the  ob- 
ject is  to  create  what  is  properly  termed  an  easement  over 
the  land  ;  but  assuming  that  to  be  so,  it  appears  clear  that  to 
create  an  easement  over  land  you  must  possess  the  ownership 
of  the  land.  Every  easement  has  its  origm  in  a  grant  express 
or  implied.  The  person  who  can  make  that  grant  must  he  the 
oivner  of  the  land.  A  railway  company  cannot  grant  an  ease- 
ment over  the  land  of  another  person.  They  may  grant  an 
easement  as  soon  as  they  become  proprietors  of  the  land,  but 
not  until  they  become  such  proprietors.  They  must  own  the 
servient  tenement  in  order  to  give  an  easement  over  the  ser- 
vient tenement."  Even  though,  therefore,  a  right  of  way  or 
other  easement  were  conferred  under  the  provisions  of  an  act 
of  parliament,  it  is  questionable  whether  it  is  not  in  the  eye 
of  the  law  created  and  given  by  an  implied  grant  by  the  ser- 
vient owner.     So,  again,  in  the  case  of  an  easement  claimable 

"  Rangeley  v.  Midland  Railway  Company,  L.  R.  3  Ch.  App.  at  p.  310; 
3  7  L.  J.  Cb.  313. 


88  ACQUISITION   OF   EASEMENTS. 

under  a  custom,  the  question  nia}'^  be  asked  whether  the  ease- 
ment is  not,  in  point  of  law,  deemed  to  have  been  conferred 
by  presumed  gi'ant  b}^  the  servient  owner,  to  which  grant  the 
dominant  owner  is  legally  entitled  under  the  custom.  It  is 
mentioned  in  the  case  of  Gaved  v.  Martyn  *  that  tin-streamers 
in  Cornwall  have,  by  the  custom  of  the  county,  a  right  to 
the  free  use  of  the  water  over  the  whole  of  the  district  within 
their  tin-bounds,  and  that  they  claim  the  right  not  only  to  use 
the  water,  but  to  divert  it  into  other  streams.  These  rights 
are  undoubtedly  easements,  and  they  are  claimed  under  a  cus- 
tom. In  the  case  of  Ivimy  v.  Stocker,*^  these  rights  were 
again  under  consideration  of  the  courts,  and  they  were  not 
there  alleged  to  be  customary  rights,  but,  on  the  other  hand, 
they  were  decided  to  be  rights  created  by  implied  grant,  such 
grant  being  presumed  after  long  enjoyment  to  have  been  made 
by  the  owner  of  the  adjoining  land  to  the  owner  of  the  ground 
under  which  the  mine  was  excavated. 

These  instances  render  it  somewhat  doubtful  whether  ease- 
ments can  be  created  and  acquired  otherwise  than  by  grant 
express  or  implied,  for  it  will  be  shown  that  in  the  remaining 
case,  of  acquisition  by  prescription,  a  grant  is  always  implied, 
and  that  a  devise  by  will  is,  in  fact,  an  actual  grant.  But  as 
this  is  mere  theory,  and,  it  is  conceived,  of  no  practical  value, 
easements  will  be  treated  in  this  work  as  capable  of  creation 
and  acquisition  by  five  distinct  means,  and  it  may  be  taken  as 
a  fact,  that  in  whatever  manner  an  easement  may  be  called 
into  existence  the  right  is  essentially  the  same,  as  well  as  the 
legal  incidents  belonging  to  it.'' 

Easements,  being  incorporeal  rights,  follow  the  rule  which 
Easements  is  binding  in  all  other  cases  of  incorporeal  rights, 
created  by  ^^^^  c^u  be  Created  only  by  deed  —  that  is,  by  deed 
udl)'/*^''  actually  executed,  or  presumed  to  have  been  exe- 
presumed.     cuted.     Easements  cannot  be  created  by  parol,^  or 

^  34  L.  J.  C.  P.  at  p.  354  ;  19  C.  B.  N.  S.  732. 
=  L.  R.  1  Ch.  App.  396;  35  L.  J.  Ch.  467. 
Mason  v.  Shrewsbury  and  Hereford  Railway  Company,  40  L.  J.  Q.  B. 
per  CoL-kburn,  C.  J.,  at  p.  297;  L.  R.  6  Q.  B.  5  78. 

1  Duinneen  v.  Rich,  22  Wis.  550;  Huff  v.  McCauley,  53  Penn.  St.  20G; 


EASEMENTS   GENERALLY.  89 

by  writing  not  under  seal,  except  in  the  case  of  an  act  of 
parliament,  a  custom,  or  a  will.  The  doctrine  that  things 
corporeal  lie  in  livery,  but  incorporeal  rights  in  grant,  has 
been  recognized  at  law  from  the  earliest  times,®  and  the  rule  ^0-^ 
that  easements  can  be  created  only  by  deed  of  grant,  has  been 
affirmed  in  many  decisions  of  later  years.  Thus  it  was  said 
by  Bayley,  J.,  in  the  case  of  Hewlins  v.  Shippara  ■'' :  "A 
right  of  way,  or  a  right  of  passage  for  water  (where  it  does 
not  create  an  interest  in  the  land),  Is  an  incorporeal  right? 
and  stands  upon  the  same  footing  with  other  incorporeal 
rights,  such  as  rights  of  common,  rents,  advowsons,  &c.  It 
lies  not  in  livery,  but  in  grant ;  and  a  freehold  interest  in  it 
cannot  be  created  or  passed  (even  if  a  chattel  interest  may, 
which  I  think  it  cannot)  otherwise  than  by  deed  ;  "  and,  after 
citing  numerous  authorities,  the  learned  judge  continued, 
"  upon  these  authorities  we  are  of  opinion  that  although  a 
parol  license  might  be  an  excuse  for  a  trespass  till  such  li- 
cense were  countermanded,  that  a  right  ayid  title  to  have  pas- 
sage for  the  water,  for  a  freehold  interest,  required  a  deed  to 
create  it,  and  that  as  there  has  been  no  deed  in  this  case,  the 
present  action,  which  is  founded  on  a  right  and  title,  cannot 
be  supported." 

In  America  it  is  well  settled  that  covenants  between  ad- 
loining  landholders  that  one  estate  shall  thereafter    ^ 

•"      _       °  _  _  _    _  _  Covenants 

enjoy  certain  rights  or  privileges  in    the  other,  as   by  land- 
that  no  building  shall  be  erected  thereon,  create  an 
interest  in  the  nature  of  an  easement,  which  may  be  enforced 
in  favor  of  the  so-called  dominant  estate  over  the  other,  either 
at  law  or  in  equity,  as  the  case  may  be.^ 

Fahr  v.  Dean,  26  Mo.  116;  Dark  i'.  Johnston,  55  Penn,  St.  164;  Crysler 
V.  Creighton,  East.  T.  2  Vic.  (Canada);  Mumford  v.  Whitney,  15  Wend. 
380;  Pitkin  v.  Long  Island  Railway  Co.  2  Barb.  N.  Y.  (Ch.)  221. 

*  Co.  Litt.  9  a,  and  42  a. 

/5  B.  &  C.  at  p.  229.  See,  also,  Cocker  v.  Cowper,  1  C.  M.  &  R.  418; 
Fentiman  v.  Smith,  4  East,  107;  Mayfield  v.  Robinson,  7  Q.  B,  486,  and 
The  Duke  of  Somerset  v.  Fogwell,  5  B.  &  C.  875. 

1  See  Parker  v.  Nightingale,  6  Allen,  341;  Gibert  v.  Peteler,  38  Barb. 
488;  Clark  v.  Way,  11  Rich.  Law,  624;  ante,  p.  82,  note. 


90  ACQUISITION   OF   EASEMENTS. 

It  has  been  contended  that  as  an  easement  cannot  be  cre- 
Breach  of  ^^^^  otherwise  than  by  deed,  an  agreement  for  an 
contract        eascment  not  under  seal  is  void  —  so  much  so,  that 

for  an  ease-  .  -n  t      r       i  i  rr-M 

nient  not      no  action  Will  lie  for  breach,      ihere  are  cases,  how- 
ever,  in  wdiich    an   action    may   be    maintained   for 
breach  of  a  written  contract  for   an  easement,  although    no 
easement  is  actually  created  by  the  writing.^ 

A  mere  license  in  the  nature  of  an  easement  may  be  ac- 
quired in  any  way  by  which  permission  can  be  un- 
licenses  by  derstood  to  have  been  given,  and  whether  there  is 
any  writing  in  existence  to  pi'ove  the  grant  or  not.^ 
The  case  of  Hewlins  v.  Shippam,  above  noticed,  shows  that 
such  an  interest  may  be  created  by  word  of  mouth  only,  and, 
though  it  is  scarcely  necessary  to  cite  them,  there  are  other 
authorities  to  the  same  effect.'*  So,  also,  there  are  authorities 
to  show  that  licenses  can  be  given  by  deed  as  well  as  by  writ- 
ing not  under  seal.  If  licenses  can  be  conferred  by  word  of 
mouth  only,  it  hardly  requires  demonstration  that  they  may 
be  conferred  by  writing  ;  but  it  may  be  asked,  if  a  license  in 
the  nature  of  an  easement  is  given  by  deed,  in  what  respect 
does  the  interest  granted  differ  from  an  easement,  and  is  not 
the  interest  conferred  really  an  easement?  Although  the  in- 
terest is  conferred  by  deed  it  may  frequently  only  be  a  license 
that  the  grantee  acquires,  but  whether  it  is  so  depends  upon 
the  words  employed  in  the  deed.  The  nature  of  licenses  is 
very  clearlj'^  explained  in  the  judgment  of  the  Court  of  Ex- 
chequer in  the  case  of  Wood  v.  Ledbitter,*  and  it  will  be  seen 
from  that  judgment  that  mere  licenses  may  be  given  by  deed, 
as  well  as  by  writing  not  under  seal  or  by  word  of  mouth,  for 
it  is  there  said,  "  But  suppose  the  case  of  a  parol  license  to 
come  on  any  land,  and  there  to  make  a  watercourse  to  flow  on 
to  the  land  of  the  licensee.     In  such  a  case  there  is  no  valid 

"  Smart  v.  Jones,  15  C.  B.  N.  S.  717;  33  L.  J.  C.  P.  154.  And  see 
Wetherell  v.  Brobst,  23  Iowa,  589. 

1  See  Morse  v.  Copeland,  2  Gray, ,302. 

*  Fentiman  v.  Smith,  4  East,  107;  Liggins  v.  Inge,  7  Bing.  682;  9  L.  J. 
C.  P.  202;  Cocker  v.  Cowper,  1  C,  M.  &  R.  418. 

'■  13  M.  &  W.  838;  14  L.  J.  Exch.  161. 


EASEMENTS   GENERALLY.  91 

grant  of  the  watercourse,  and  the  license  remains  a  mere  li- 
cense, and  therefore  capable  of  being  revoked.  On  the  other 
hand,  if  such  a  license  were  granted  by  deed,  then  the  ques- 
tion would  be  on  the  construction  of  the  deed,  whether  it 
amounted  to  a  grant  of  the  watercourse,  and  if  it  did,  then 
the  license  would  be  irrevocable." 

In  addition  to  these  modes  of  acquiring  licenses,  they  may 
frequently  be  implied  from  the  passive  acquiescence 
of  the  grantor  in  the  act  of  the  licensee  ;  but  in  from  acqui- 
many  instances,  when  the  acquiescence  is  not  surn- 
cient,  or  of  such  a  character  as  to  support  a  defence  of  leave 
and  license  in  an  action,  it  is  sufficient  to  entitle  the  quasi-li- 
censee  to  the  equitable  assistance  of  the  court  to  restrain  in- 
terference with  the  enjoyment  of  the  privilege.  In  Davies  v. 
Marshall,-'  which  was  an  action  for  obstruction  of  light  and 
for  removing  support,  it  was  pleaded  on  equitable  grounds 
that  the  plaintiff  acquiesced  in  the  acts  of  which  complaint 
was  made ;  and  Willes,  J.,  said :  "  The  plea,  as  pleaded, 
seems  to  set  up  either  that  the  plaintiff  actually  gave  leave 
for  the  acts  to  be  done  whereby  the  injury  was  caused,  or  that 
he  conducted  himself  in  such  a  manner  as  that  a  reasonable 
man  would  conclude  from  his  conduct  that  he  did  give  that 
consent  which  is  not  expressly  proved  to  have  been  given. 
The  conduct  sometimes  amounts  to  an  estoppel,  and  is  such 
evidence  of  leave  and  license  as  cannot  be  controverted  by  the 
person  so  conducting  himself."  So,  in  the  case  of  The  Roch- 
dale Canal  Company  v.  King,'^  which  was  a  suit  by  the  plain- 
tiffs for  an  injunction  to  restrain  the  defendant  from  taking 
water  for  their  canal  for  the  purpose  of  generating  steam  in 
his  engine.  The  practice  of  taking  water  for  this  purpose  had 
continued  for  many  years,  and  it  was  sworn  on  the  part  of  the 
defendant  that  when  the  mills  of  the  defendant  were  built, 
express  notice  was  given  to  the  canal  company  of  an  intention 
to  make  a  communication  with  the  canal  in  order  to  draw 
water  from  it  for  th'e  purpose  of  generating  steam,  and  that 

J  10  C.  B.  N.  S.  697;  31  L.  J.  C.  P.  61. 

^  2   Sim.  N.  S.   78;  20  L.  J.  Ch.  6  75;  Bankart  v.  Houghton,   27  Beav. 
425 ;  28  L.  J.  Ch.  473;  Bankart  v.  Tennant,  L.  E.  10  Eq.  141. 


92  ACQUISITION   OF   EASEMENTS. 

the  servants  and  agents  of  the  company  superintended  the 
laving  down  of  the  pipes,  and  were  aware  of  the  uses  to  which 
they  were  to  be  applied,  and  made  no  objection.  "  Now,  un- 
questionably, if  this  be  true,"  said  Lord  Cranworth,  V.  C,  in 
his  judgment,  "  the  plaintiffs  can  have  no  relief  in  this  court. 
Such  conduct,  even  if  it  be  not  sufiicient  to  sustain  a  plea  of 
leave  and  license  in  bar  to  an  action,  certainly  incapacitated  the 
plaintiffs  from  obtaining  any  assistance  in  a  court  of  equity." 
In  some  instances,  also,  licenses,  like  easements,  may  be  ac- 
Imniied  quired  by  grant  implied  from  surrounding  circum- 
from  sur-      stauccs,  as  witliout  them  some  riffht,  or  the  benefit 

rouiuiiiig  .  ,         • 

circuiu-  of  some  agreement,  may  be  incapable  of  enjoyment, 
and  it  must  have  been  intended  that  such  licenses 
should  have  been  given.  An  instance  of  this  occurred  in  the 
case  of  Hewitt  v.  Isham.'  In  that  case  an  agreement  for  let- 
ting land  had  been  made,  and  the  following  clause  was  in- 
serted :  "  All  the  hedges,  trees,  thorn-bushes,  fences,  with 
the  lop  and  top,  are  reserved  to  the  landlord."  To  an  action 
for  trespass  against  the  landlord  for  breaking  and  entering 
the  land  and  drawing  the  trees  over  it,  the  defendant  pleaded 
leave  and  license,  and  it  was  held  that  the  reservation  in  the 
agreement  afforded  evidence  of  leave  and  license,  so  that  the 
plea  was  proved. 

ACQUISITION    OF   EASEMENTS    BY    GRANT. 

Taking  the  modes  b}'-  which  easements  may  be  acquired  to 
Acquis!-  ^®  ^^®  ^^^  number,  as  above-mentioned,  the  first  of 
tion  by        them  is  acquisition  by  Grant.     It  has  already  been 

grant,  ex-  .  ■"■  •'  _  -^ 

pressor  explained  that  easements,  being  incorporeal  rights, 
can  be  granted  only  by  deed  ;  but  that,  though  in 
many  cases  no  deed  can  be  shown  to  have  been  executed  in 
fact,  or  actually  to  have  existed,  yet  that,  under  certain  cir- 
cumstances, it  will  be  presumed  by  the  law  that  there  was  a 
deed  by  which  the  right  was  created,  and  that  from  accident 
or  loss  the  deed  cannot  be  produced.  In  such  cases  the  grant 
is  said  to  be  implied  or  presumed. 

'  7  Exch.  77;  21  L.  J.  Exch.  35;  Foster  v.  Spooner,  Cro.  Eliz.  17  ;  Lif- 
ord's  case,  11  Coke's  Kep.  47. 


ACQUISITION   BY   GRANT.  93 

Though  there  are  many  circumstances  under  which  ease- 
ments cannot  be  acquired  by  the  other  recognized  means  by 
which  they  may  be  created,  there  are  scarcely  any  under 
which  a  grant  may  not  be  made.  But  it  has  already  been 
shown  that  a  new  species  of  easement  cannot  even  be  created 
by  grant  so  as  to  be  made  appurtenant  to  land,  although  a 
grant  of  such  a  right  is  perfectly  good  against  the  gran- 
tor."' 

It  will  be  seen  hereafter  that  a  tenant  cannot  acquire  an 
easement  in  land  belonging  to  his  lessor,  by  prescrip- 
tion at  common  law,  even  though  the  land  is  in  the  one  tenant 
occupation  of  another  tenant ;  but  this  is  not  so  in 
the  case  of  a  grant,  for  there  is  no  reason  why  an  occupier 
of  land  should  not  grant  a  limited  interest,  or  a  mere  incor- 
poreal right  in  his  soil  to  another  person,  to  continue  during 
his  holding,  or  for  any  shorter  period,  unless  he  is  restrained 
from  so  doing  by  private  arrangement  with  his  landlord.** 
Should  such  a  grant  be  made  it  is  not  of  course  in  the  power 
of  a  tenant  to  bind  his  landlord  by  it,  and  a  grant  in  excess  of 
his  interest  will  be  void  as  to  the  excess. 

And  so  it  is  held,  that  the  grantor  of  an  easement  must  be 
the  owner  of  the  fee.^  A  tenant  for  years,  or  for  life,  cannot 
by  grant  create  a  permanent  easement  in  the  estate,  although 
perhaps  he  could  give  a  license,  which  might  be  valid  daring 
the  continuance  of  his  term,  unless  he  thereby  injures  the  lessor > 
or  remainderman. 

So  the  grantor  must  be  the  sole  owner  of  the  fee.  One 
joint  owner  or  tenant  in  common  cannot  create  an  easement 
in  the  common  estate,  as  against  his  co-tenant,  though  prob- 
ably he  would  be  himself  estopped  to  dispute  a  grant  thus 
made.^ 

For  the  same  reason  one  tenant  in  common  cannot,  when 
conveying  his  own  interest  in  the  common  property,  create 

"•  See  ante,  p.  21. 

"  Large  v.  Pitt,  Peake  Ad.  152. 

1  See  Portmore  v.  Bunn,  1  B.  &  C.  694. 

2  See  De  Witt  v.  Harvey,  4  Gray,  486;  Crippen  v.  Morss,  49  N.  Y.  63. 


94  ACQUISITION   OF   EASEMENTS. 

"  by  reservation  "  a  personal  and  separate  easement  over  the 
same  for  the  benefit  of  his  adjoining  separate  property.^ 

A  man  may  not  derogate  from  his  own  grant  ;  if,  therefore, 
Dero  ation  ^^^  prevention  of  the  enjoyment  of  an  easement 
from  grant    ^ould  be  an  act  in  derogation  of  a  grant,  the  hiw 

bv  prevent-  ,     ,i      , 

inganease-  Will  not  allow  a  hindowner  to  prevent  that  enjoy- 
"^*'"^'  ment,  although  no  express  grant  of  tlie  easement  has 

been  made.  The  case  of  Popplewell  v.  Hodkinson "  was  an 
action  for  removing  support  received  from  underground  water 
by  draining  land.  It  was  said  in  the  Exchequer  Chamber 
that  there  is  nothing  at  common  law  to  prevent  the  owner  of 
land  draining  if  he  desires  to  do  so,  though  it  may  happen 
that  where  a  person  grants  land  to  another  for  a  special  pur- 
pose —  as,  for  instance,  for  building  —  the  law  will  prevent 
the  grantor  draining  his  own  adjoining  land  if  the  draining 
would  have  the  effect  of  rendering  the  land  granted  less  fit  for 
the  special  purpose  for  which  it  was  granted  than  it  otherwise 
would  have  been ;  the  law  so  restrains  his  freedom,  simply  on 
the  ground  that  the  grantor,  if  permitted  to  drain  and  thereby 
remove  the  support  necessary  for  the  buildings,  would  dero- 
gate from  his  own  grant.  And  on  the  same  principle  if  a 
man  sells  a  house  in  which  there  are  windows  overlooking  the 
adjoining  land,  and  he  retains  that,  it  is  held  in  England^  he 
cannot  afterwards  build  on  the  land  in  such  a  manner  as  to 
darken  the  windows,  for  when  granting  the  house  he  is 
presumed  also  to  have  granted  a  right  to  light  for  the  win- 
dows.^ 

On  the  same  principle  in  the  recent  case  of  Siddons  v. 
Short,^  it  was  held  that  where  a  vendor  of  land  sells  the  same 
knowing  that  the  vendee  intends  to  erect  substantial  buildings 
thereon,  he  impliedly  covenants  that  he  will  not  use  his  ad- 

1  Marshall  v.  Trumbull,  28  Conn.  183.  And  see  Clark  v.  Parker,  106 
Mass.  557;  Austin  v.  Cox,  118  Mass.  58. 

o  L.  R.  4  Exch.  248;  38  L.  J.  Exch.  126. 

p  Coutts  V.  Gorham,  Moo.  &  Mai.  396;  Cox  v.  Matthews,  1  Vent.  239; 
Palmer  v.  Fletcher,  1  Lev.  122;  Sb  T.  Raym.  87;  Palmer  v.  Paul,  2  L.  J. 
Ch.  154  (not  elsewhere  reported).     The  American  law  is  different. 

2  2  C.  P.  Div.  572  (1877).  See,  also,  Caledonia  Railway  Co.  v.  Sprot, 
2  Macq.  449. 


ACQUISITION   BY   GRANT.  95 

joining  land  in  a  manner  to  derogate  from  his  grant ;  and 
therefore  that  when  A.  sold  B.  a  portion  of  land  for  an  iron 
founder}^,  he  could  not  afterwards  work  the  coal  mines  in  his 
adjoining  land  so  near  to  the  boundary  line  as  to  endanger  the 
support  of  the  land  granted  ;  and  that  the  grantee  is  entitled 
to  an  injunction  upon  showing  a  reasonable  probability  of 
damage,  though  none  has  yet  been  actually  sustained- 
Easements  may,  also,  sometimes  be  acquired  from  the  cir- 
cumstance of  the  servient  owner  being  estopped  from  Estoppel 
denying  a  right  to  the  enjoyment  of  them  —  as,  for  [Ji'fl'^an*^"^" 
instance,  if  a  person  without  title  professes  to  grant  easement. 
an  easement ;  for,  after  such  grant,  he  will  be  estopped  from 
denying  the  right  to  such  an  easement  if  he  subsequently  ac- 
quires the  fee  in  the  servient  tenement.*  ^  So  where  a  lease 
of  a  piece  of  land  was  granted,  and  the  land  was  described, 
among  other  particulars,  as  "  bounded  on  the  east  and  north 
by  newly-made  streets,"  and  a  plan  was  indorsed  on  the  lease 
which  showed  "  new  streets,"  in  those  positions,  and  it  ap- 
peared in  evidence  that  when  the  lease  was  granted  the  strips 
of  land,  described  on  the  plan  as  new  streets,  were,  on  the 
east,  a  piece  of  waste  ground,  and  on  the  north  a  piece  of 
land  indistinctly  marked  out  as  a  street,  or  intended  street,  it 
was  held  that  the  lessor  was  estopped  by  his  deed  from  deny- 
ing that  there  were  streets  or  ways  in  the  places  indicated  in 
the  lease.  The  lessee  had  built  the  houses  he  had  cove- 
nanted in  the  lease  to  build,  and  upon  which  the  new  streets 
were  intended  to  abut,  and  it  was  held  that  though  no  public 
streets  had  been  made,  the  lessee  was  entitled  to  rights  of  way 
over  the  places  where  the  new  streets  were  described  in  the 
lease.** 

And  this  principle  is  generally  adopted  in  the  American 
law  ;  ^   but    solely  on  the  ground   of  estopjjel,  the   deed  not 

9  Eowbotham  v.  Wilson,  8  E.  &  B.  per  Watson,  B.,  at  p.  145;  27  L.  J. 
Q.  B.  at  p.  64  ;  Roberts  v.  Karr,  1  Taunt.  495. 

^  Moses  V.  Sanford,  2  Lea  (Tenn.),  655. 

»•  Espley  V.  Wilkes,  L.  R.  7  Exch.  298;  41  L.  J.  Exch.  241;  Harding  v. 
Wilson,  2  B,  &  C.  96. 

2  See  Parker  v.  Smith,  17  Mass.  413  ;  O'Linda  v.  Lothrop,  21  Pick.  292; 
Tufts  V.  Cliarlestown,  2  Gray,  271;  Smith  v.  Lock,  18  Mich.  56  ;  Smyles 


96  ACQUISITION   OF   EASEMENTS. 

amounting  to  a  contract  or  covenant  with  the  grantee,  that 
he  should  have  such  a  right  of  way,  if  the  grantor  had  no 
interest  in  the  soil  of  the  alleged  way.^ 

An   easement  may  be  acquired  by  grant  for  any  period, 
either  permanently,  or  for  a  term  of  years,  or  until 
limited         the  happening  of  a  particular  event  ;  and  in  this 
^""^'  respect  an  easement  acquired  by  grant  differs  from 

an  easement  acquired  by  prescription,  for  it  will  be  seen 
hereafter  that  an  easement  cannot  be  acquired  by  prescrip- 
tion unless  the  prescriptive  user  has  been  such  as  to  give  a 
good  title  against  all  persons,  including  the  owner  of  the  fee 
in  the  servient  tenement ;  and  that,  although  claims  may  be 
made  under  the  Prescription  Act*  in  right  of  the  occupier  of 
the  dominant  tenement,  the  easement  is  acquired  as  at  com- 
mon law,  not  merely  for  the  occupier,  to  continue  during  his 
interest,  but  for  the  owner  of  the  fee  simple  to  continue  un- 
til it  is  released.  That  easements  may  be  acquired  under  a 
grant  for  a  term  of  years,  or  any  other  limited  period,  is  es- 
tablished by  various  cases.  Thus,  in  Davis  v.  Morgan,'  a 
grant  of  right  to  divert  water  from  a  river  to  a  mill  for  ninety- 
nine  years  is  mentioned  ;  and  in  Large  v.  Pitt,"  it  is  declared 
that  one  tenant  can  have  an  easement  in  land  of  his  lessor 
occupied  by  another  tenant  by  grant  from  the  latter,  although 
such  a  right  could  not  be  acquired  by  prescription. 

Easements  may  be  acquired   by   express    grant,  either  by 
Acquisi-       particular  description,   or  under  the  general  words 
pre'ss^"^  ^^'    ^"  ^  deed  of  conveyance." 
grant.  In  conveying  land  with  easements  by  deed,  it  will 

V.  Hastings,  22  N.  Y.  217;  Stetson  v.  Dow,  16  Gray,  373;  White  v.  Flan- 
nigain,  1  Md.  540. 

^  Howe  V,  Alger,  4  Allen,  206.    And  see  In  re  Mercer  Street,  4  Cow.  542. 

*  2  &  3  Wm.  IV.  c.  71,  s.  5. 

'4  B.  &  C.  8. 

"  Peake  Ad.  Ca.  152.  See,  also,  Ardley  v.  St.  Pancras  Guardians,  39 
L.  J.  Ch.  871  ;  Oakley  v.  Adamson,  8  Bing.  356;  Duke  of  Somerset  v. 
Fogwell,  5  B.  &  C.  875.     And  see  Kuhlman  v.  Hecht,  77  111.  570. 

"  An  agreement  under  seal  for  the  use  of  a  way  operates  as  a  grant  of  a 
right  of  way,  and  not  merely  as  a  covenant  for  quiet  enjoyment.  Holms 
V.  Seller,  3  Lev.  305. 


ACQUISITION   BY   GRANT.  97 

readily  be  seen  that  there  is  a  great  difference  in  the  case  of 
existing  easements  to  which  the  grantor  is  entitled  in  the  land 
of  third  persons,  and  which  are  appurtenant  to  the  land  then 
being  conveyed,  and  gwasi-easements  which  he  has  been  in  the 
habit  of  using  in  land  of  his  own,  which  he  is  not  at  the  time 
conveying.'"  The  former  are  easements  already  created,  and 
existing  in  the  character  of  easements  before  the  conveyance  is 
executed,  and  the  effect  of  the  conveyance  is  merely  to  ti'ans- 
fer  the  right  of  the  grantor  to  the  grantee  of  the  land ;  but, 
in  the  case  of  the  quasi-esisements,  as  long  as  the  ownership 
of  the  land  conveyed  and  the  land  retained  is  united  in  the  per- 
son of  the  grantor,  those  rights  are  not  easements  at  all,  but 
merely  "  proprietary  rights  "  which  the  owner  of  the  land  is 
entitled  to  enjoy  in  his  character  of  owner,  and  as  a  part  of  the 
rights  incident  to  his  ownership  of  the  soil.  When,  therefore, 
by  conveying  the  land,  he  gives  the  easements  to  the  grantee, 
he  does  not  give  easements  previously  created  and  existing  in 
the  character  of  easements,  but  he  creates  new  rights  and  an- 
nexes them  to  the  newly-made  dominant  tenement. 

If  an  owner  of  land  is  possessed  of  an  easement  in  the  land 
of  another  person,  he   may,  on  conveying  his   own 
land,  expressly  convey  the  easement  also  by  particu-   grant  by 
larly  describing  it  in  the  deed  of  conveyance,  and   descrip- 
the  grantee  of  the  land  will  become  entitled  to  it ; 
and  so,  also,  an  owner  of  land,  on   conveying  a  part  of  his 
land,  may,  bt/  particular  description,  give  the  grantee  of  the 
part  a  right  of  way  or  other  easement  over  the  part  reserved, 
and  the  grantee  will  likewise  become  entitled  to  that  ease- 
ment.    In  the  former  case  there  is  merely  an  assignment  of 
an  existing  easement ;  in  the  latter,  there  is  a  grant  of  a 
newly  created  right. 

Instead  of  particularly  describing  the  easements  which  ven- 
dors intend  to  grant  to  their  purchasers,  they  often    Express 
merely  employ  the  general  words  ordinarily  inserted    ^^^^g^  ^/ 
in  deeds  of  conveyance,  and  questions  of  some  nicety   words. 
then  frequently  arise  as  to  the  easements  to  which  the  pur- 
chasers are  entitled  under  their  deeds.     It  is  under  these  cir- 

^  Morris  v.  Edgingtoa,  3  Taunt.  24. 

7 


98  ACQUISITION   OF   EASEMENTS. 

cumstances  that  the  distinction  has  more  commonly  become 
apparent  between  easements  enjoyed  in  the  land  of  third  per- 
sons, and  those  ^'Mase'-easeinents  which  the  vendor  has  been 
accustomed  to  use  in  his  own  land  which  he  is  not  at  the  time 
conveying,  and  which,  not  being  really  easements,  become  then 
newly  created,  if  granted  at  all,  by  the  deed  of  conveyance/ 
All  easements,  properly  so  called,  to  which  a  landowner  has 
A  t  -  ^  right  in  the  soil  of  a  tJm-d  person,  will  pass  to  a 
nances ;        grantee  of  the  land  under  the  general  words  of  con- 

what  will       ^  ,  .   ,       ,,  1 

pass  by  the  vcyancc,  "together  with  all  easements  and  appurte- 
nances ; "  and  even  if  the  word  "  easements "  is 
omitted,  the  word  "  appurtenances "  is  sufficient  to  carry 
those  rights.^  Easements  of  necessity  will  probably  pass  to 
the  grantee  of  land  without  any  general  words  of  this  kind, 
and  they  will  certainly  pa^s  under  the  general  word  "  appur- 
tenances." ^ 

IN    AMERICA, 

it  is  well  settled  that  an  easement  of  a  right  of  way,  over  an- 
other's land,  however  acquired,  which  is  really  appurtenant 

^In  the  case  of  Wood  v.  Saunders,  L.  R.  10  Ch.  682;  44  L.J.  Ch. 
520,  Hall,  V.  C,  speaking  of  the  genei'al  words  in  a  deed  of  conveyance, 
and  the  value  to  be  attached  to  them,  remarked,  that  "  It  was  said  that  in 
the  conveyance  which  was  afterwards  made,  there  were  a  great  number  of 
general  words  put  in,  which  are  unmeaning  and  insensible,  according  to  the 
strict  literal  rule  of  construing  every  word  as  passing  something  more  than 
would  be  passed  without  it.  It  was  said  that  there  were  some  general  words 
put  in,  such  as  'all  houses,  outhouses,  buildings,  drains,'  and  so  forth,  and 
that  being  put  in,  you  ought  to  hold  that  something  extra  passed,  because 
all  those  would  pass  without  being  enumerated.  General  words,  we  all 
know,  are  almost  always,  if  not  always,  unmeaning;  and  you  can,  in  fact, 
only  lay  hold  of  them  to  sometimes  extend  the  operation  of  an  instrument; 
as,  for  example,  to  easements  which  have  become  extinguished  by  unity 
of  seisin,  or  enjoyment,  or  in  some  other  way.  They  have  no  operation, 
and  the  only  wonder  is  that  they  have  been  allowed  to  remain  so  long  in 
the  conveyancers'  pigeon-holes  to  be  put  in  every  deed,  when,  in  truth, 
they  have  really  no  meaning  or  effect  at  all." 

f  Whalley  v.  Thompson,  1  B.  &  P.  371;  Morris  v.  Edgington,  3  Taunt. 
24;  Skull  V.  Glenister,  16  C.  B.  (N.  S.)  92;  7  L.  T.  827;  Beaudley  r. 
Brook,  Cro.  Jac.  189. 

*  Pinnington  v.  Galland,  9  Exch.  1;  22  L.  J.  Exch.  348;  Barlow  v. 
Rhodes,  1  C.  &  M.  439;  2  L.  J.  N.  S.  Exch.  91. 


ACQUISITION    BY    GRANT.  99 

to  the  land  conveyed,  passes  with  a  deed  of  tlie  land  and  "  all 
appurtenances,"  though  not  specifically  mentioned.^ 

It  is  also  clear  that  if  such  right  of  way  is  not  complete 
at  the  time  of  the  conveyance,  but  only  partially  acquired,  as 
by  an  adverse  use  for  only  ten  years,  and  so  not  exactly  an 
appurtenance,  the  inchoate  and  imperfect  right  will  pass  under 
the  word  "  appurtenances,"  so  that  the  grantee  can  tack  his 
subsequent  adverse  use  to  his  grantor's  former  adverse  use, 
and  thus  make  out  a  complete  and  perfect  right  to  the  ease- 
ment.^ It  is  also  true  that  a  right  of  way  may  be  really  ap- 
purtenant to  other  land,  although  in  the  instrument  creating 
or  reserving  it  no  words  of  inheritance  are  used  ;  for  such  an 
easement  is  never  presumed  to  be  personal,  when  it  can  fairly 
be  construed  as  appurtenant  to  some  other  estate.^ 

So  a  provision  in  a  deed  of  land  that  no  building  is  to  be 
erected  thereon  by  the  grantee,  his  heirs  or  assigns,  creates  an 
easement  in  or  a  servitude  upon  the  land*  so  conveyed,  which 
inures  not  only  to  the  grantor  personally,  but  also  attaches  to 
his  remaining  land,  as  appurtenant  thereto,  when  the  nature 
of  the  restriction,  and  the  situation  of  the  respective  lots  in- 
dicates that  it  was  intended  for  the  benefit  of  the  grantor's 
remaining  land  ;  and  being  so  appurtenant,  the  restriction 
may  be  enforced  by  a  subsequent  grantee  of  the  lot  so  orig- 
inally reserved.'*     But  sometimes  the  word  "appurtenances" 

1  See  Kent  v.  Waite,  10  Pick.  138;  Oakley  v.  Stanley,  5  Wend.  523; 
Underwood  v.  Carney,  1  Cash.  285 ;  Seavey  v.  Jones,  43  N.  H.  443;  George 
V.  Cox,  114  Mass.  387;  Barker  v.  Clark,  4  N.  H.  382;  Dennis  v.  Wilson, 
107  Mass.  591;  Spaulding  v.  Abbott,  55  K  H.  425;  Handy  v.  Foley,  121 
Mass.  258;  Huttemeier  v.  Albro,  18  N.  Y.  48;  Voorhees  v.  Burcbard,  6 
Lans.  176;  55  N.  Y.  98. 

2  Leonard  v.  Leonard,  7  Allen,  277,  wbere  the  subject  is  carefully  ex- 
amined. This  would  probably  be  so  in  all  those  States  where  two  adverse 
possessions  under  successive  claimants  can  be  tacked  to  make  out  the  re- 
quired period.  See  Ref.  Church  v.  Schoolcraft,  65  N.  Y.  145  ;  Winslow  v. 
Newell,  19  Vt.  164. 

3  Dennis  v.  Wilson,  107  Mass.  592.  See  Bowen  v.  Connor,  6  Cush.  132; 
Barnes  v.  Lloyd,  112  Mass.  232;  Borst  v.  Empie,  1  Seld.  33  ;  Winthrop 
V.  Fairbanks,  41  Me.  312  ;  Burr  v.  Mills,  21  Wend.  290. 

*  Peck  V.  Conway,  119  Mass.  546;  Herrick  v.  Marshall,  66  Me.  435; 
Trustees  v.  Lynch,  70  N.  Y.  440;  Lattimer  v.  Livermore,  72  K  Y.  174. 


100  ACQUISITION   OF   EASEMENTS. 

in  a  deed  has  been  held  not  to  convey  anj'thing  except 
what  was  legally  appurtenant  to  the  land  in  the  hands  of  the 
grantor,  and  not  to  include  an  inchoate  easement  in  the  land 
of  another,  which  had  not  at  the  time  of  the  grant  ripened  into 
a  complete  legal  right,  and  so  was  not  legally  appurtenant 
and  attached  to  the  premises  described  in  the  deed.^ 

Therefore,  where  A.  conveyed  to  S.  a  tract  of  land  with  the 
buildings  thereon,  "  with  all  the  privileges  and  appurte- 
nances to  the  same  belonging,"  and  at  the  time  of  the  grant 
water  was  conveyed  to  the  buildings  by  an  aqueduct  from  a 
spring  on  the  land  of  H.,  a  third  party,  but  which  A.  had  not 
a  legal  right  to  continue  against  the  consent  of  H. ;  it  was 
held  that  tlie  deed  to  S.  did  not  include  any  right  to  the 
spring  or  aqueduct,  so  as  to  render  A.  liable  to  S.  on  the 
covenants  of  warranty  in  his  deed,  if  H.  deprived  S.  of  the 
water.^  It  might  be  different  if  the  spring  and  aqueduct 
was  on  the  other  Imrid  of  the  grantor  ;  for  it  might  then  pass 
on  other  principles.^ 

So  where  one  owns  three  adjoining  lots,  A,  B,  and  C,  and 
has  been  accustomed  to  pass  from  A  to  C  over  B,  and  con- 
veys lots  A  and  C  to  L.,  with  all  "  the  privileges  and  appur- 
tenances," and  lot  B  to  another  party,  neither  deed  alluding 
to  any  way  over  lot  B,  L.  does  not  acquire  a  right  to  pass  over 
lot  B  from  A  to  C  under  the  phrase  "  appurtenances,"  it  not 
being  necessary,  but  only  convenient.^ 

Those  ^^wasi-easements  which  have  never  existed,  or  which 
What  will  have  ceased  to  exist  as  easements  properly  so  called, 
not  pass.  i^y  reason  of  unity  of  ownership,  will  not  generally 
pass  under  a  conveyance  of  the  quasi- dominant  tenement  with 
the  "  appurtenances."  In  the  case  of  Whalley  v.  Thompson,'* 
above  noticed.  Eyre,  C.  J.,  said :  "  There  can  be  no  doubt  that 
the  word  '  appurtenances  '  may  convey  an  existing  right  of 
way.    But  from  the  moment  that  the  possession  of  two  closes 

^  Swazy  V.  Brooks,  34  Vt.  451, 

2  Spaulding  v.  Abbott,  55  N.  H.  423.  And  see  Seavey  v.  Jones,  43  N. 
H.  441. 

8  Coolidge  V.  Hagar,  43  Vt.  9.  *  Barker  v.  Clark,  4  N.  H.  380. 

«  1  B.  &  P.  at  p.  375;  Barlow  v.  Rhodes,  1  C.  &  M.  439;  2  L.  J.  N.  S. 
Exch.  91. 


ACQUISinON   BY    GRANT.  101 

is  united  in  one  person,  all  subordinate  rights  and  easements 
are  extinguished."  .  ..."  I  admitted  during  the  argument 
that  the  word  '  appurtenances  '  would  carry  any  easement  or 
legal  right.  Upon  that  it  was  observed  that  if  the  road  in 
question  had  been  described  in  the  devise,  it  would  have 
passed,  and  that  observation  was  followed  up  by  a  question 
whether  the  word  '  appurtenances  '  would  not  carry  any  ease- 
ment or  right  that  would  pass  by  a  particular  description  ;  to 
which  I  answered  that  its  operation  must  be  confined  to  an  old 
existing  right,  and  that  if  the  right  of  way  had  passed  in  this 
instance,  it  must  have  passed  as  a  new  easement." 

This  was  decided  in  America  so  early,  at  least,  as  1817,  in 
Gayetty  v.  Bethune,^  where  the  owner  of  two  adjoining  lots, 
both  of  which  fronted  on  the  same  public  street,  had  used, 
for  many  years  before  his  death,  a  circuitous  way  from  the 
rear  of  one  lot  over  the  other  to  the  public  street,  instead  of 
coming  out  directly  thereon.  Upon  a  division  of  the  two  lots 
among  his  heirs,  some  time  after  his  decease,  the  lot  having 
the  way  de  facto  leading  from  it  was  set  off  to  one  heir 
"  with  all  the  privileges  and  appurtenances  thereto  belong- 
ing," but  no  express  mention  was  made  of  this  way,  nor  was 
there  any  general  phrase  "  with  all  ways  heretofore  used  there- 
with," and  it  was  held  that  no  right  of  way  passed  under  the 
general  words  of  privileges  and  appurtenances,  there  being  no 
necessity  for  it,  but  only  a  convenience.  And  this  principle 
has  been  frequently  adopted  in  subsequent  cases,  in  the  same 
court.^  It  was  also  fully  appi'oved  in  the  recent  case  in  New 
York,  of  Parsons  v.  Johnson.^ 

There  are,  however,  a  few  instances  in  which  the  word 
"  appurtenances "  has  been  held  to  pass  easements  which 
ought  not  strictly  to  have  been  so  denominated,  on  account 
of  their  having  ceased  to  be  easements.  This  was  so  in  the 
case  of  Morris  v.  Edgington,*  in  which  it  was  said  that  all 

1  14  Mass.  49.     And  see  Oliver  v.  Hook,  47  Md.  301. 

2  See  Grant  v.  Chase,  17  Mass,  443. 

8  68  N.  Y.  62,  in  which  many  cases  supposed  to  be  contrary  were  criti- 
cally examined  and  distinguished. 

*  3  Taunt.  24.  ,  And  in  this  case  the  way  might  have  been  considered  a 
way  "  by  necessity."     See  Harris  w._Smith,  40  Up.  Can.  Q.  B.  33. 


102  ACQUISITION   OF   EASEMENTS. 

deeds  are  to  be  taken  most  strongly  against  the  maker,  and  all 
deeds  and  writings  are  to  be  taken  secundum  subjectam  mate- 
riatn  ;  that  in  that  case  there  was  no  way  heard  of  at  all  be- 
longing to  the  premises  in  question  except  one  which  w^as  not 
strictly  appurtenant,  and  that  as  there  was  no  other  way,  and 
as  it  was  impossible  that  the  parties  to  the  "deed,  who  were 
supposed  necessarily  to  understand  the  law,  could  suppose  the 
way  in  question  was  a  way  appurtenant,  they  must  have 
meant  that  that  particular  way  should  pass,  although  they 
used  the  improper  term  "  appurtenant."  A  similar  decision 
was  given  in  the  case  of  James  v.  Plant,''  as  it  was  thought 
the  parties  to  the  deed  used  the  word  "  appurtenant  "  by 
mistake,  and  that  their  intention  was  to  pass  a  way  which 
could  not  strictly  be  so  designated. 

As  the  general  word  "  appurtenances  "is  not  usually  suffi- 
Whpn  cient  to  convey  to  a  purchaser  of  land  those  quasi- 

meliu  wiiT  easements  which  the  vendor  has  been  in  the  habit 
pass  under   gf  usins:  for  liis  own  convenience,  during  unity  of 

general  ^  i-iii-i-  i-  i 

words.  ownership  in  his  land  which  is  not  being  conveyed* 
the  further  question  arises  whether  any  general  words  are 
sufficient  to  pass  to  the  purchaser  a  right  to  use  those  privi- 
leges, and  to  erect  them  into  easements  properly  so  called.  If 
proper  general  words  are  employed  this  effect  may  in  certain 
cases  be  produced,  but  in  this  respect  a  further  distinction  has 
been  made  between  those  ^-MasZ-easements  which  existed  as 
easements  proper  before  the  ownership  was  united,  and  those 
which  were  for  the  first  time  used  during  unity  of  ownership 
and  have  never  actually  existed  as  easements.  At  the  time 
of  the  publication  of  the  first  edition  of  this  book  the  law  ap- 
peared to  be  pretty  well  settled  on  this  point ;  and  it  was 
taken  to  be  that  in  the  former  case  the  privilege  might  by  the 
use  of  suitable  general  words  be  passed  to  a  purchaser  of  the 
dominant  part  of  an  estate,  and  be  reconverted  into  ease- 
ments ;  while  in  the  latter,  that  effect  could  not  be  produced 
under  any  general  words  in  a  deed  of  conveyance.  By  two 
decisions  of  quite  recent  date,  however,  this  doctrine  has  been 

<^  5  B.  &  Ad.  791 ;  in  Exchequer  Chamber,  4  A.  &  E.  749  ;  6  L.  J.  N.  S. 
Exch.  Ch.  260. 


ACQUISITION   BY    GRANT.  103 

somewhat  modified,  and  it  is  not  now  very  easy  to  define  the 
general  principle  of  law  on  this  point. 

There  appears  to  be  no  doubt  that  to  grant  to  a  purchaser 
of  land  easements  which  existed  as  easements  before,  Grant  of 
but  which  have  been  extinguished  by  unity  of  own-  u*f,s"^*^and 
ership,  by  means  of  the  general  words  in  a  deed  of  enjoyed." 
conveyance,  it  is  necessary  to  use  particular  words  indica- 
tive of  an  intention  to  make  the  grant.  It  has  been  laid  down 
that  "  if  in  the  case  of  an  easement  extinguished  by  unity  of 
ownership  a  man  grants  the  land  to  which,  before  the  extin- 
guishment the  riglit  of  common  was  attached,  and  uses  only 
the  words  '  appertaining  '  and  '  belonging,'  the  right  will  not 
pass,  these  words  not  being  sufficient  to  revive  the  right. 
There  are,  however,  apt  words  for  the  purpose  of  passing  such 
an  easement  ;  and  if  you  will  only  insert  the  words  '  or  there- 
with used  and  enjoyed,'  the  right  would  pass."  '^ 

Since  the  trial  of  the  case  from  the  report  of  which  these 
words  are  taken,  there  have  been  many  decisions  confirming 
the  law  as  it  is  there  laid  down  ;  but  the  possibility  of  grant- 
ing easements  by  these  general  words  had  apparently  always 
been  confined  to  easements  which  existed  before  union  of 
ownership,  and  it  had  never  been  extended  to  those  quasi- 
easements  which  had  been  first  used  during  unity  of  owner- 
ship. In  a  recent  case  on  this  subject,  the  law  was  summed 
up  by  Kelly,  C.  B.,  in  the  following  terms  :  "  The  basements 
law  resulting  from  the  numerous  and  complicated  first  "used 
cases  to  which  we  have  been  referred  is  simply  joyed" 
this :  When  the  owner  of  a  piece  of  land  has  a  unity^of 
right  of  way  over  adjacent  land,  so  that  he  may  o^^"eiship. 
maintain  at  any  time  an  action  for  an  obstruction,  if  after- 
wards by  inheritance  or  purchase  both  pieces  of  land  come  to 
one  and  the  same  owner,  the  right  is  necessarily  at  an  end, 
the  enjoyment  thenceforth  being  the  mere  exercise  of  a  right 
of  property  in  his  own  land.  But  if,  at  a  later  period,  the 
properties  again  fall  into  the  ownership  and  possession  of 
different  persons,  and  in  the  conveyance  of  the  land  to  which 
the  way  was  formerly  attached,  the  words  are  found  '  to- 
^  Barlow  v.  Rhodes,  1  C.  &  M.  at  p.  448. 


104  ACQUISITION    OF   EASEMENTS. 

gether  with  all  ways,  &c.,  used  or  enjoyed  therewith,'  the 
effect  of  these  words  is  to  revive  the  right  that  formerly  ex- 
isted, and  which  has  been  not  extinguished,  but  only  sus- 
pended. But  since  it  does  not  appear  here  that  at  any  an- 
tecedent time  there  existed  a  right  over  one  of  these  pieces  of 
land  attached  to  the  other  piece  of  land,  the  effect  of  these 
words  cannot  make  or  revive  a  right  of  way  that  never  before 
existed."* 

Recently,  however,  as  before  stated,  two  cases  have  been 
„  ,.^  decided   by  which  the   doctrine,  that  on  severance 

Blodifica-  *' 

tion  of  of  two  parts  of  an  estate,  by  sale  of  the  quasi-dom'i- 
nant  portion,  a  grant  of  easements  by  general  words 
can  in  no  case  erect  into  easements  practices  which  a  land- 
owner has  used  in  one  part  of  his  estate  for  the  convenient 
enjoyment  of  the  other,  unless  the  practices  existed  as  ease- 
ments before  the  ownership  of  the  two  parts  of  the  estate  was 
united,  has  been  modified.  These  cases  are  Watts  v.  Kelson-'' 
and  Kay  v.  Oxley.''  In  the  former  the  lords  justices  over- 
ruled the  decision  of  the  master  of  the  rolls.  That  case, 
which  had  reference  to  a  watei'course,  was  that  the  owner  of 
two  adjoining  properties  conveyed  to  the  plaintiff  one  por- 
tion, "  together  with  "  among  other  things  "  all  waters,  wa- 
tercourses, rights,  privileges,  advantages,  and  appurtenances 
whatsoever,  to  the  same  hereditaments  and  premises  belong- 
ing or  appertaining,  or  with  the  same  or  any  part  thereof 
now  or  heretofore  used  and  enjoyed,  or  reputed  as  part  or 
parcel  thereof,  or  appurtenant  thereto."  The  question  was 
whether  any  right  passed- to  the  purchaser  to  the  continuance 
of  certain  water  pipes  in  the  part  of  the  land  the  grantor  re- 
tained and  which  subsequently  became  the  defendant's.  The 
pipes  ran  through  the  grantor's  land  at  the  time  of  the  plain- 

«  Langley  v.  Hammond,  L.  R.  3  Excb.  at  p.  161;  37  L.  J.  Exch.  118; 
Thomson  v.  Waterlow,  L.  R.  6  Eq.  36;  37  L.  J.  Ch.  499;  James  v.  Plant, 
4  A.  &  E.  749;  6  L.  J.  N.  S.  Exch.  Cham.  260;  Worthington  v.  Gimson, 
2  E.  &  E.  618;  29  L.  J.  Q.  B.  116  ;  Wardle  v.  Brocklehurst,  1  E.  &  E. 
1058;   29  L.  J.  Q.  B.  145. 

/L.  R.  6  Ch.  App.  166;  40  L.  J.  Ch.  126. 

f  L.  R.  10  Q.  B.  360;  44  L.  J.  Q.  B.  210. 


ACQUISITION   BY   GRANT.  105 

tiff's  purchase,  but  were  not  there  previously  to  the  grantor's 
unity  of  ownership,  and  the  plaintiff  contended  that  under 
the  above  general  words  he  became  entitled  to  have  the  con- 
tinued use  of  the  pipes.  The  case  was  decided  by  the  master 
of  the  rolls  in  the  defendant's  favor,  upon  the  ground  that 
the  artificial  watercourse  was  first  made  and  begun  by  a  per- 
son who  was  owner  of  both  properties  and  had  no  prior  exist- 
ence at  a  time  when  the  properties  were  separately  owned, 
and  that  being  the  case,  the  general  words  were  not  suffi- 
cient in  his  opinion  to  pass  the  right ;  but  this  judgment  was 
overruled.  The  lords  justices  decided  the  case  upon  other 
grounds,  but  on  the  point  now  under  consideration  said  they 
also  thought  that  the  general  words  in  the  deed  were  amply 
sufficient  to  pass  the  easement,  for  that  there  was  a  recognized 
distinction  between  easements  in  their  nature  continuous  such 
as  that  in  the  case  before  the  court,  and  those  which  were 
only  used  from  time  to  time,  as  a  right  of  way,  and  that 
though  the  words  in  the  deed  might  not  be  sufficient  to  pass 
a  right  of  way,  if  the  way  had  been  first  used  during  unity  of 
ownership,  yet  that  they  were  amply  sufficient  to  pass  a  right 
to  a  watercourse,  for  that  was  in  its  nature  continuous,  even 
though  it  was  made  during  unity  of  ownership.  The  other 
case,  Kay  v.  Oxley,  went  still  farther,  for  that  was  a  case  of  a 
right  of  way.  One  of  two  farms  belonging  to  the  same  per- 
son was  let,  and  the  lessee  with  the  lessor's  j)ermission,  built 
a  hay-loft,  with  windows  for  the  reception  of  the  hay  open- 
ing over  a  private  way  in  the  lessor's  ground,  and  to  bring 
the  hay  to  the  loft  he  carted  it  along  the  way  up  to  the  loft. 
This  user  of  the  way  was  a  mere  license  by  the  lessor,  though 
as  the  loft  had  been  built  in  that  position  with  his  sanction, 
and  there  was  no  other  means  of  getting  to  it,  it  might  have 
been  a  question,  whether  the  license  was  not  irrevocable. 
That  question,  however,  did  not  arise.  The  farm  with  the 
loft  was  sold,  and  the  conveyance  contained  the  following 
general  words  :  "  Together  with  all  buildings,  erections, 
fixtures,  common  hedges,  ditches,  fences,  ways  and  rights  of 
way,  waters,  watercourses,  drains,  cisterns,  lights  and  rights 
of  light,  liberties,  privileges,  easements,  advantages  and  ap- 


106  ACQUISITION^   OF   EASEMENTS. 

purtenances  whatsoever  to  the  said  messuage  or  dwelling- 
house,  cottage,  hiud,  and  hereditaments,  or  any  of  them  ap- 
pertaining or  with  the  same  or  any  of  them  now  or  heretofore 
demised,  occupied,  or  enjoyed,  or  reputed  as  part  or  parcel  of 
them,  or  any  of  them,  or  appurtenant  thereto."  It  was  held 
that  a  right  of  way  to  the  loft  passed  to  the  purchaser  under 
these  general  words,  although  before  the  unity  of  ownership 
of  the  two  farms  no  such  right  existed,  and  the  loft  was  not 
built.  The  decision  naturally  turned  upon  the  particular 
facts  of  the  case,  and  the  special  words  used  in  the  convey- 
ance ;  but  it  is  a  decision  of  great  importance,  as  it  involves 
a  modification  of  what  was  previously  taken  to  be  the  rule  of 
law.  Blackburn,  J.,  said  :  "  It  is  not  disputed  at  all  that  if 
the  conveyance  had  stopped  at  the  word  "  appertaining,"  the 
plaintiffs'  case  would  have  been  different ;  but  it  goes  on  to 
add  the  words,  "  with  the  same  now  or  heretofore  demised, 
occupied,  or  enjoyed  or  reputed  as  part  or  parcel  of  them,  or 
any  of  them,  or  appurtenant  thereto."  Now  we  have  to  look 
at  the  facts,  in  order  to  see  whether  there  was  in  fact  the  par- 
ticular right  of  way  in  question  occupied  or  enjoyed  as  ap- 
purtenant, or  reputed  as  appurtenant  to  the  property  con- 
veyed. Mr.  Herschell  says  that  when  a  man  is  occupier  of 
two  adjoining  pieces  of  land,  and  uses  one  for  the  convenience 
of  himself  as  the  actual  occupier  of  both,  anything  he  may  do 
there  is  prund  facie  not  a  right  appurtenant  to  the  other  of 
them,  and  would  not  pass  as  appurtenant ;  that  it  is  for  his 
own  convenience  as  occupier  of  the  two  that  he  exercises  his 
right  of  passing  through  one  to  the  other,  and  that  he  does 
not  primd  facie  enjoy  or  occupy  the  way  he  thus  makes  to 
the  one  as  being  appurtenant  to  the  other  of  them,  and  that 
therefore  it  would  not  pass  as  a  right  enjoyed  as  appui'tenant. 
But  though  that  be  the  case  primd  facie,  yet  if  there  be  acts 
of  ownership  and  user  by  a  man  for  the  enjoyment  and  exclu- 
sive convenience  of  himself  as  occupier  of  both  the  adjoining 
lands,  notwithstanding  the  cases  that  have  been  cited,  I  do 
not  think  in  point  of  law  we  can  say  the  way  being  so  en- 
joyed and  occupied  by  a  man  only  during  the  time  he  has 
unity  of  possession  and  unity  of  seisin  necessarily  prevents  its 


ACQUISITION   BY   GRANT.  107 

being  enjoyed  as  appurtenant."  The  passage  from  the  judg- 
ment of  Kelly,  C.  B.,  in  Langley  v.  Hammond,  already  cited, 
•was  then  referred  to,  and  Blackburn,  J.,  remarked  that  "  no 
doubt  the  chief  baron  does  lay  that  down,  and  if  it  had  been 
a  decision  of  the  full  Court  of  Exchequer  we  should  have  been 
obliged  to  leave  it  to  a  court  of  error  to  say  whether  that 
was  right.  I  cannot  agree  that  a  right  of  way  that  never  pre- 
viously existed  cannot  as  a  matter  of  law  be  created  on  the 
construction  of  words  like  those  in  this  conveyance."  It  is 
also  to  be  noticed  that  in  the  case  of  Langley  v.  Hammond,-^ 
already  mentioned,  Bramwell,  B.,  made  some  remarks  on  this 
point,  showing  that  he  held  views  similar  to  those  expressed 
by  Blackburn,  J.,  above  set  out.  That  learned  judge  ex- 
pressed much  doubt  whether  a  conveyance  of  land  containing 
such  general  words  as  "together  with  all  ways  therewith  used 
and  enjoyed,"  would  not  operate  as  a  grant  of  any  ways  made 
and  first  used  during  unity  of  ownership  rf  they  ivere  of  a  de- 
fined and  permanent  character^  2ls,  y^eVi  as  of  ways  which  ex- 
isted as  easements  before  unity  of  ownership. 

It  will  now  be  seen  that  an  important   modification  has 
been  wrought  in  the  law  by  these  recent  decisions,   jj^gun  ^f 
and  it  is  consequently  somewhat  difficult  to  say  with   authorities 

^  ,  •'  as  to  grants 

any  feeling  of  certainty  what  the  rules  of  law  pre-  by  general 
cisely  are  with  regard  to  grants  of  easements  by 
general  words  in  a  deed  of  conveyance,  if  the  owner  of  two 
estates  has,  during  the  unity  of  ownership,  been  in  the  habit 
of  using  the  one  he  retains  as  servient  to  the  one  he  is  con- 
veying. But  taking  the  view  expressed  by  the  lord  chief 
baron,  which  was  founded  upon  the  preceding  decisions,  and 
modifying  it  by  the  two  more  recent  judgments,  the  law  now 
seems  to  be  this  —  if  a  man  has  two  adjoining  properties,  and 
exercises  a  ^■wasi-easement  over  the  one  for  the  beneficial  en- 
joyment of  the  other,  and  sells  the  5'Mas^-dominant  tenement 
—  if  he  sells  it  merely  "  with  the  appurtenances,"  no  ease- 
ment is  gained  by  the  purchaser  ;  if  the  ^was2'-easement  ex- 
isted as  an  easement  before  unity  of  ownership  of  the  two 
properties,  and  the  5^<as^'-dominant  tenement  is  sold  "  with 
•^  L.  R.  3  Exch.  at  p.  170. 


108  ACQUISITION   OF   EASEMENTS. 

the  easements  used  and  enjoyed  therewith,"  the  purchaser 
will  become  entitled  to  the  easement ;  if  the  quasi-easement 
did  not  exist  as  an  easement  before  unity  of  ownership,  and 
the  ^itflsi-dominant  tenement  is  sold  "  with  the  easements 
used  and  enjoyed  therewith,"  the  purchaser  will  get  the  ease- 
ment if  it  is  of  a  continuous  character,  as,  for  instance,  a 
■watercourse  ;  but  ordinarily  he  will  not  get  it  if  it  is  only 
used  from  time  to  time,  as  a  right  of  way.  There  are  cases, 
however,  in  which  the  purchaser  may  get  the  easement,  even 
though  it  is  not  continuous,  for  the  general  words  in  the  deed 
of  conveyance  may  be  of  such  a  character  that  the  right  will 
pass  ;  but  whether  the  right  is  gained  must  depend  in  each 
case  upon  the  surrounding  circumstances  and  the  words  used 
in  the  deed. 

To  constitute  a  grant  of  an  easement,  it  is  not  necessary 
The  word     that  the  word  "  grant  "  should  actually  be  used  in 

•'grant"       a  deed ;  but  it  is  sufficient  if  the  intention  to  grant 

not  essen-  '  » 

t'*'-  be  manifested  ; ''  therefore  an  agreement  under  seal, 

whereby  it  was  agreed  that  the  owner  of  a  particular  field 
should  "  have  and  enjoy  forever  thereafter  the  right  therein- 
after expressed  (that  is  to  say)  that  it  should  be  lawful  to 
and  for  the  owner  or  owners  for  the  time  being  "  to  have  the 
use  of  the  water  of  a  stream  for  the  purposes  of  irrigation, 
was  held  to  operate  as  a  grant  of  the  easement  of  the  water- 
course mentioned  in  the  deed.'*  So  also  an  agreement  under 
seal  for  the  use  of  a  way  may  operate  as  a  grant  of  a  right  of 
way,  and  not  merely  as  a  covenant  for  quiet  enjoyment.* 

An  easement  cannot  strictly  be  made  the  subject  either  of 
Easements  exception  or  reservation  in  a  deed  of  conveyance  of 
excepted      land,  for  it  is  neither  parcel  of  the   land  o-ranted,- 

or  reserved         ....  ...  ^  -i  • 

in  a  con-  which  circumstauce  is  requisite  to  enable  a  thing  to 
^  °*^^'  be  excepted,  nor  does  it  issue  out  of  the  land,  as  it 
should  to  render  it  capable  of  being  the  subject  of  a  reserva- 
tion. If,  therefore,  an  easement  be  incorrectly  reserved  to  a 
grantor  of  land,  or  excepted  from  the  land  conveyed,  the  res- 

ff  Per  Lord  Kenyon,  C.  J.,  in  Shove  v.  Pincke,  5  T.  11.  at  p.  129. 
f'  Northam  v.  Hurley,  1  E.  &  B.  665;  22  L.  J.  Q.  B.  183. 
»■  Holms  V.  Seller,  3  Lev.  305. 


ACQUISITION   BY    GRANT.  109 

ervation  or  exception  operates  as  a  grant  of  a  newly  created 
easement  b}^  the  grantee  of  the  land  to  the  grantor/ 

It  scarcely  needs  remark  that  a  grant  of  an  easement  is 
void  if  it  is  repugnant  to  terms  of  an  act  of  parlia-    q^^^^  ^^^ 
ment.      If,  however,  the  act  only  partially  affects    variance 
the  grant,  and  the  grant  is  divisible,  or  can  be  lim-    actofpar- 
ited,  that  part  only  is  void  which  is  inconsistent  with 
the  act.* 

A  grant  of  an  easement  may  be  made  conditionally  — 
that  is,  that  it  shall  become  void  on  the  happenins!' 

,  .  „  ^.       ,  .  ,         Grant  sub- 

or  non-nappennig  or  a  particular  event,  or  on  the  ject  to  a 
performance  or  non-performance  of  a  certain  act.  '^°'"^'"°"- 
But  if  the  condition  is  that  the  grant  shall  become  void  on 
neglect  to  use  the  easement  granted,  the  word  "  void  "  will 
be  construed  "  voidable,"  and  the  grant  will  not  be  revoked 
until  the  grantor  has  done  some  act  to  show  his  intention  to 
take  advantage  of  the  forfeiture.' 

IMPLIED    GRANTS    OF    EASEMENTS. 

Grants  of  easements  are  implied  under  various  circum- 
stances. It  will  be  seen  shortly  that  a  grant  is  implied  in 
nearly  every  case  of  acquisition  of  an  easement  by  prescrip- 
tion,'" but  as  this  will  be  explained  when  that  mode  of  acqui- 
sition is  considered,  it  will  not  be  noticed  further  in  this  place. 

As  a  general  rule,  a  grantee  of  land  or  of  an  easement  is  en- 
titled by  implied  grant  to  any  easement  in  the  land    j     ,.  , 
of  the  grantor,  which  is  necessary  to  render  the  land   S'"ant  of 

CciSGiiisnts 

or  easement  granted  capable  of  enjoyment  to  the  necessary 
full  extent.  This  rule  of  law  seems  to  depend  upon  a^grant^"^ 
the  principle  that  when  the  grant  was  made  it  must    ^''^"eficiai. 

J  Durliatn  and  Sunderland  Railway  Company  v.  Walker,  2  Q.  B.  at  p. 
96  7;  11  L.  J.  Exch.  at  p.  446  ;  Goold  v.  Great  Western  Deep  Coal  Com- 
pany, 2  De  G.,  J.  &  S.  600;  12  L.  T.  842;  13  L.  T.  109;  Finlinsony.  Por- 
ter.L.  R.  10  Q.  B.  188;  44  L.  J.  Q.  B.  56. 

*-■  Attorney  General  v.  Mayor,  &c.  of  Plymouth,  9  Beav.  67;  15  L.  J.  Ch. 
109. 

I  Roberts  v.  Davey,  1  Nev.  &  Man.  443;  2  L.  J.  N.  S.  K.  B.  141. 

m  The  acquisition  of  rights  to  light  by  prescription  is  now  an  exception 
to  this  rule. 


110  ACQUISITION   OF   EASEMENTS. 

have  been  the  intention  of  the  parties  tliat  the  grantee  should 
have  the  means  of  using  the  thing  granted,  and  therefore 
that  he  should  have  all  rights  and  powers  in  or  over  the  gran- 
tor's soil  which  might  be  requisite  for  his  purpose.  In  Pom- 
fret  V.  Ricroft,"  it  was  said  that  when  the  use  of  a  thing  is 
granted  everything  is  granted  by  which  the  grantee  may  have 
and  enjoy  such  use  ;  as,  if  a  man  gives  me  a  license  to  lay 
pipes  of  lead  in  his  land  to  convey  water  to  my  cistern,  I  may 
afterwards  enter  and  dig  the  land  to  mend  the  pipes,  though 
the  soil  belongs  to  another,  and  not  to  me.  So  it  was  held 
that  if  a  person  has  statutory  power  to  make  convenient  and 
necessary  wagon-ways  over  the  land  of  another  to  his  coal- 
pits, he  may,  under  proper  restriction,  dig  in  the  adjoining 
soil  of  the  other,  and  procure  materials,  if  necessary,  to  make 
embankments,  and  he  may  cut  through  eminences  to  make 
the  ways  level,  for  if  the  level  or  requisite  inclination  of  the 
way  could  only  be  made  by  erecting  pillars  or  arches,  or  pro- 
curino"  materials  from  a  considerable  distance  and  at  a  consid- 
erable expense,  the  right  given  by  the  act  would,  in  many 
instances,  become  futile  and  unavailing  by  reason  of  the  cost 
required  for  its  exercise."  And  again,  a  grant  of  land  having 
been  made  reserving  for  the  grantor  all  mines  of  coal,  with 
liberty  of  sinking  and  digging  pits,  the  grantor  was  held  to 
have  a  right  to  erect  a  steam-engine,  and  even  in  a  building 
of  stone,  to  drain  the  mines  and  draw  the  coal  to  the  sur- 
face, the  engine  being  necessary  for  those  purposes,  as  inci- 
dent to  his  liberty  to  excavate  the  coal.  It  was  also  held  that 
he  was  justified  in  making  a  pond  on  the  land,  although  that, 
too'ether  with  the  engine  and  other  machinery,  occupied  two 
acres  and  a  half  of  land ;  because  the  pond  was  a  necessary 
accessory  to  the  engine.^ 

Sometimes  a  grant  of  easements  will  be  implied  from  the 
state  of  the  surrounding  circumstances  at  the  time  a  grant  of 

"  1  Wms.  Saund.  at  p.  322  b;  Finlinson  v.  Porter,  L.  R.  10  Q.  B.  188; 
44  L.  J.  Q.  B.  5G;  Ho(l<;son  v.  Field,  7  East,  613;  Nicholas  v.  Chamber- 
lain, Cro.  Jac.  121;  Underwood  v.  Burrows,  7  C.  &  P.  26. 

"  Abson  V.  Fenton,  1  B.  &  C.  195. 

P  Dand  v.  Kingscote,  6  M.  &  W.  174;  9  L.  J.  N.  S.  Exch.  279. 


ACQUISITION   BY    GRANT.  Ill 

land  is  made,  though  a  question  will  generally  arise  in  such 
cases  whether  regard  can  be  had  to  anything  besides 
the  terms  of  the  deed  of  grant.     In  Hall  v.  Lund  ^   sumed^'^^' 
one  Pullan  had  carried  on  the  business  of  a  bleacher    romufin'^' 
in  certain  premises,  and  liad  been  in  the  habit  of   ci'cum- 

st^ncBs 

pouring  foul  water  from  his  works  into  a  stream,  and 
thereby  polluting  it.  It  was  arranged  that  Pullan  should 
assign  his  business  to  the  defendant,  and  he  therefore  sur- 
rendered the  lease  of  the  premises  to  Shaw,  the  plaintiff's 
predecessor  in  title,  and  Shaw  granted  a  new  lease  to  the  de- 
fendant, in  which  the  latter  was  described  as  a  "  bleacher," 
and  reference  was  made  to  the  business  of  bleaching,  which 
the  defendant  intended  to  carry  on  in  the  premises.  Shaw 
then  sold  the  freehold  of  the  premises  to  the  plaintiff,  who 
began  to  carry  on  the  business  of  paper-making  in  adjoining 
premises,  and  sued  the  defendant  for  polluting  the  stream  of 
water.  It  was  held  that  the  court  was  at  liberty  to  examine 
the  history  as  well  as  the  previous  mode  of  enjoyment  of  the 
defendant's  premises,  and  that  as  Shaw,  the  plaintiff's  prede- 
cessor in  title,  with  a  full  knowledge  of  the  mode  in  which  the 
premises  had  been  used  by  Pullan,  granted  a  new  lease  of  the 
same  premises  to  the  defendant  for  the  sanie  purpose,  there 
was  an  implied  grant  of  the  right  to  pollute  the  stream  in  the 
same  manner  Pullan  had  been  accustomed  to  pollute  it. 

A  grant  of  an  easement  is  often  implied  after  uninter- 
rupted user  for  twenty  years.  Implication  of  a  p^.^^^ 
grant  after  user  for  twenty  years  is  not  so  common  ^'on  of  lost 
now  as  a  mode  or  clamiing  easements  as  it  was  be-  twenty 
fore  the  passing  of  the  Prescription  Act,*"  for  the  ''^^^^  "^^^' 
claim  by  prescription  under  that  act  is  generally  adopted  in 
preference :  the  old  mode  was  not,  however,  abolished  by  the 
act,  and  it  may  still  be,  and  sometimes  is,  used  in  cases  in 
which  a  prescriptive  title  cannot  be  proved.  This  mode  of 
claiming  an  easement,  and  the  consecpient  passing  of  the  Pre- 
scription Act,  was  referred  to  by  Martin,  B.,  in  the  case  of 
Mounsey  y.  Ismay,*  in  the  following  terms:    "The  occasion 

3  1  H.  &  C.  676;  32  L.  J.  Exch.  113.  "^  2  &  3  Wra.  IV.  c.  71. 

»  3  H.  &  C.  486 ;  34  L.  J.  Exch.  32. 


112  ACQUISITION   OF   EASEMENTS. 

of  the  enactment  of  the  Prescription  Act  is  well  known.  It 
had  been  long  established  that  tiie  enjoyment  of  an  easement 
as  of  ritrht  for  twenty  years  was  practically  conclusive  of  a 
right  from  the  reign  of  Richard  L,  or,  in  other  words,  of  a 
right  by  prescription,  unless  proof  was  given  of  an  impossi- 
bility of  the  existence  of  a  right  from  that  period  :  and  a  very 
common  mode  of  defeating  such  a  right  was  proof  of  a  unity 
of  possession  since  the  time  of  legal  memory.  To  meet  this 
the  grant  by  lost  deed  was  invented,  but  in  progress  of  time  a 
difficulty  arose  in  requiring  a  jury  to  find  upon  their  oaths 
that  a  deed  had  been  executed  which  every  one  knew  never 
existed  ;  hence  the  Prescription  Act." 

From  this  passage  it  would  appear  that  the  modern  plan 
of  claiming  easements  under  the  Prescription  Act  was  in- 
tended as  a  substitute  for  the  ancient  method  of  claiming 
under  a  grant  by  a  deed  presumed  to  have  been  lost  after 
twenty  years'  enjoyment  of  the  privilege ;  but  it  would  seem 
not  to  be  so  considered,  for  the  method  of  claiming  easements 
in  the  ancient  manner  may  be  met  with  in  quite  modern 
cases,  and  there  are  instances  in  which  both  the  ancient  and 
modern  systems  have  been  introduced  in  the  same  set  of 
pleas.'  It  may  be  mentioned  here  that  to  support  a  claim  to 
an  easement  under  a  grant  presumed  to  have  been  lost,  it  has 
been  said  that  it  should  be  proved  that  the  user  commenced 

'  The  following  note  on  this  subject  appears  in  BuUen  and  Leake's  Prec- 
edents of  Pleading,  under  the  title,  "Pleas,  &c.,  in  Actions  for  Wrong 
—  Ways."  "  The  plea  of  a  right  of  way,  or  of  a  right  to  any  other 
easement,  by  non-existing  grant,  may  sometimes  be  supported  by  evidence 
which  would  fail  to  support  a  prescriptive  right  of  way  under  the  Prescrip- 
tion Act,  as  where  there  has  been  an  interruption  of  enjoyment  within  the 
period  prescribed  by  the  statute,  or  where  the  enjoyment  cannot  be  brought 
down  to  the  commencement  of  the  suit.  (See  Parker  v.  Mitchell,  11  A.  & 
E.  788;  Onley  v.  Gardiner,  4  M.  &  W.  496;  Lowe  v.  Carpenter,  6  Exch. 
825.)  It  may  also  sometimes  be  supported,  by  evidence  which  would  fail 
to  support  a  plea  of  prescription  at  common  law,  by  reason  of  the  right 
being  shown  to  have  commenced  within  the  period  of  legal  memory. 
Hence  it  is  frequently  advisable  to  plead  together  in  the  same  case  pleas 
of  prescription  by  the  statute  of  presci'iption  at  common  law,  and  of  a  non- 
existing  grant."  An  instance  of  these  ))leas  being  pleaded  together  is  to 
be  found  in  Bailey  v.  Stephens,  12  C.  B.  N.  S.  91;  31  L.  J.  C.  P.  226. 


ACQUISITION   BY   GRANT.  113 

about  the  time  when  the  grant  is  presumed  to  have  been 
made,  for  where  no  proof  of  this  is  given  the  evidence  goes  to 
prove  a  prescriptive  right  and  not  a  grant." 

To  raise  a  presumption  of  a  grant  of  an  easement  after 
twenty    years'    user,  it    is    essential   that    the    user   ^^ 

''      'I  \  _  _  User  must 

should  have  been  enjoyed  as  of  right.  The  period  of  have  been 
twenty  years  seems  to  have  been  selected  as  the  ^  ^ 
time  after  which  a  presumption  of  a  grant  might  be  made, 
owing  to  the  circumstance  of  twenty  years  being  the  time 
which  had  come  to  be  regarded  as  sufficient  for  the  acquisi- 
tion of  easements  by  prescription.  But  that  the  enjoyment 
during  that  period  as  a  matter  of  right  is  essential  to  raise  a 
presumption  of  a  grant,  is  determined  by  the  case  of  Camp- 
bell V.  Wilson,**  where  Chambre,  J.,  in  summing  up  to  the 
jury,  said  that  if  they  were  satisfied  that  the  enjoyment  was 
adverse,  and  that  it  liad  continued  twenty  years  and  upwards 
before  the  action,  it  was  a  sufficient  ground  for  their  presum- 
ing a  grant ;  and  that  the  use  of  a  road  as  a  matter  of  right 
by  those  who  claimed  it,  and  submitted  to  as  a  matter  of 
right  by  the  possessor  of  the  land  over  which  it  was  used,  was 
to  be  considered  as  an  adverse  enjoyment;  but,  he  added,  if 
they  were  satisfied  from  the  whole  of  the  evidence  that  the 
enjoyment  had  been  only  by  leave  or  favor,  or  otherwise  than 
under  a  claim  or  assertion  of  right,  it  would  repel  the  pre- 
sumption of  a  grant ;  and  this  ruling  of  the  learned  judge  was 
approved  by  the  full  court.  It  appeared  also,  in  that  case, 
that  if  the  user  had  been  shown  to  have  originated  in  a  mis- 
take, the  presumption  of  a  grant  could  not  have  been  made. 

A  presumption  of  a  grant  cannot  arise  if  the  person  against 
whom  tlie  right  is  claimed  was  ignorant  of  or  inca-   i<rnorance 
pable  of  resisting  the  user  ;  therefore,  no  such  pre-   pac"tVT*" 
sumption  can  be  made  against  a  reversioner  if  the    resist  user 

1  1-1  •  CI         rebuts 

user  has  taken  place  dunng  the  occupation  of  the   presump- 
locus  in  quo  by  a  tenant."'     Twenty  years'  user  as   grant.  * 

«  Blewitt  V.  Tregonning,  per  Patteson,  J.,  3  A.  &  "E.  at  p.  585;  5  N.  & 
M.  316. 

"  3  East,  294. 

«"  Daniel  v.  North,  11  East,  370.     See  Davidson  v.  Nicholson,  59  Ind. 


114  ACQUISITION   OF   EASEMENTS. 

of  right  during  a  tenancy,  either  for  life  or  years,  may, 
however,  raise  a  presumption  of  a  grant  against  the  termor, 
and  so  establish  an  easement  against  him  daring  the  con- 
tinuance of  the  term ;  ^  and  if  the  user  of  the  easement  be- 
gan before  the  tenancy  in  the  servient  tenement,  a  pre- 
sumption of  a  grant  may  be  made  against  the  reversioner 
after  the  lapse  of  twenty  years  from  its  commencement,  even 
thougli  the  tenancy  continued  during  the  whole  of  the  last 
twenty  years  of  the  user.*' 

Mere  lapse  of  time,  while  user  of  an  easement  has  contin- 
ued, is  not  sufficient  of  itself  to  raise  a  presumption 
ing  facts  to    of  a  grant  against  an  owner  of  land,  for  the  infer- 
eredTn'con-   ^^^^  must  in  addition  be  drawn  from  accompanying 
junction       circumstauces,  and  if   there    is    no   direct   evidence 

with  con- 
tinuance      whether  the  owner  of  the  land  had  any  knowledge 

of  what  passed,  the  inference  to  be  drawn  must  in  a 

peculiar  degree  depend   on  the  nature  of  the  accompanying 

facts  :  the  presumption  in  such  case,  in  favor  of  a  grant,  will 

be  more  or  less  strong  as  it  may  be  more  or  less  probable  that 

the  surrounding  facts    could    not   have   existed   without   the 

knowledge    and  consent  of  the  owner  of    the  land.^     It  has 

been  pointed  out  above  that  if  the  user  has  taken  place  by 

leave  or  favor,  or  otherwise  than  under  a  claim  or  assertion  of 

right,  those  circumstances  would  repel  the  presumption  of  a 

grant ;  so,  in  like  manner,  no  presumption  can  arise  if   the 

right  to  the  user  has  been  contested  from  time  to  time.    Thus, 

in  the  case  of  Livett  v.  Wilson,"  Best,  C.  J.,  said :  "  I  do  not 

dispute  that  if   there  had   been  an    uninterrupted   user  for 

twenty  years,  the  jury  might   be   authorized   to  presume  it 

originated  in  a  deed  ;  but,  even  in  such  a  case,  a  judge  would 

not  be  justified  in  saying  that  they  must,  but  that  they  may, 

presume  the  deed.     If,  however,  there  are  circumstances  in- 

411;  Pearsall  v.  Post,  20  Wend.  Ill;  McGregor  v.  Wait,  10  Gray,  75; 
Reinier  i'.  Stuber,  20  Penn.  St.  458. 

*  Bright  V.  Walker,  1  C,  M.  &  K.  at  p.  221, 

"  Cross  V.  Lewis,  2  B.  &  C.  686;  2  L.  J.  K.  B.  136. 

*  Gray  v.  Bond,  2  B.  &  B.  G67. 

»  3  Bing.  115;  3  L.  J.  C.  P.  186. 


ACQUISITION   BY   GRANT.  115 

consistent  with  the  existence  of  a  deed,  the  jury  should  be  di- 
rected to  consider  them,  and  to  decide  accordingly." 

The  fact  that  an  easement  was  originally  enjoyed  under  an 
agreement  not  under  seal,  does  not  prevent  the  pre-  j;ffectof  an 
sumption  of  a  fjrant,  if  more  than  twenty  years  have   ^^^  agree- 

^  o  '  ./    »/  ^  ment  on 

elapsed  since  tlie  date  of  the  agreement,  and  if  the   presump- 
license  has  not  been  renewed  within  that  period.* 

An  important  question  on  the  subject  of  implied  grants  of 
easements,  about  wliich  some  difference  of  opinion    implied 
has  existed,  is  whether  an  owner  of  land  who  has   fppare°nt 
been  in  the  habit  of  using  apparent  and  continuous    fn^i^^o"- 

.  .  .  tuiuous 

qiiasi-esLsenients  in  his  own  soil  during  unity  of  own-  easements. 
ership,  does  or  does  not  grant  or  reserve  a  right  to  them  by 
implication,  if  he,  without  any  special  stipulation,  and  with- 
out using  any  general  words,*^  which  could  operate  as  a  grant 
or  reservation  of  them,  conveys  to  a  purchaser  that  portion  of 
his  land  for  the  beneficial  occupation  of  which  he  has  been  in 
the  habit  of  using  them,  or  reserves  that  portion,  granting  to 
a  purchaser  the  quasi-sevvient  tenement.  This  question  has 
received  much  consideration,  both  in  the  courts  of  common 
law  and  equity,  and  as  the  decisions  suce  somewhat  conflicting, 
it  is  proposed  to  consider  the  various  cases  in  succes-  cases  con- 
sion,  knd  to  state  what  is  the  apparent  result  of  them,    sidered. 

The  first  case  to  be  noticed  on  this  subject  is  Pyer  v.  Car- 
ter,** which  was  an  action  for  stopping  a  drain.  The  pjrer  v. 
houses  of  the  plaintiff  and  defendant  adjoined  each  ^'^■■^®''- 
other,  and  had  been  previously  one  house,  but  that  was  con- 
verted into  two,  one  being  sold  to  the  defendant,  and  the 
other,  at  a  subsequent  time,  to  the  plaintiff.  The  drain  in 
question  ran  under  the  plaintiff's  house,  and  thence  under  the 
defendant's.     It  was  decided  that  the  plaintiff  was  entitled  to 

6  Dewhirst  v.  Wrigley,  C.  P.  Cooper,  note  at  p.  329.  And  see  Bolivar 
Man.  Co.  V.  Neponset  Man.  Co.  16  Pick.  241. 

"  The  operation  of  general  words  in  a  deed  of  conveyance  upon  quasi- 
easements  which  a  landowner  has  been  in  the  habit  of  using  during  unit/ 
of  ownership  in  one  part  of  his  property  for  the  beneficial  enjoyment  of 
another  which  he  is  then  conveying,  has  been  considered  ante,  pp.  97-106. 

**  1  H.  &  N.  916;  26  L.  J.  Exch.  258. 


116  ACQUISITION   OF   EASEMENTS. 

have  the  use  of  tlie  drain  by  implied  grant,  as  it  was  used  at 
the  time  of  the  defendant's  purchase.  It  was  said  in  the 
judgment  that  it  seemed  in  accordance  witli  reason  that  where 
the  owner  of  two  or  more  adjoining  houses  sells  one  the  pur- 
chaser shall  be  entitled  to  the  benefit  of  all  the  drains  from 
his  house,  and  be  subject  to  all  the  drains  necessarily  to  be 
used  for  the  enjoyment  of  the  adjoining  house,  without  ex- 
press reservation  or  grant,  inasmuch  as  he  purchases  the 
house  such  as  it  is,  and  that  if  that  were  not  so,  the  incon- 
venience and  nuisances  in  towns  would  be  very  great.  It 
was  also  said  that  it  had  been  argued  that  there  could  be  no 
implied  agreement  unless  the  easement  was  apparent  and 
continuous,  and  that  the  defendant  stated  he  was  not  aware 
of  the  drain  at  the  time  of  his  purchase  ;  but  it  was  clear  he 
must  have  known,  or  ought  to  have  known,  that  some  drain 
existed,  and  if  he  had  inquired  he  would  have  known  of  this 
drain  ;  that,  therefore,  it  could  not  be  said  that  such  a  drain 
could  not  have  been  supposed  to  have  existed,  and  that  by 
*'  apparent  signs  "  must  be  understood  not  only  those  which 
must  necessarily  be  seen,  but  those  which  might  be  seen  or 
known  on  a  careful  inspection  by  a  person  ordinarily  conver- 
sant with  the  subject.  This  decision  has  been  the  subject  of 
much  comment,  and  the  first  remark  tending  to  restrict  the 
principle  of  law  established  thereby  was  made  by  Martin,  B., 
in  his  judgment  in  the  case  of  Dodd  v.  Burchell,'  when  he 
said,  "  Pyer  v.  Carter  went  to  the  utmost  extent  of  the  law  ; 
but,  if  considered,  that  decision  cannot  be  complained  of,  for 
if  a  man  has  two  fields  drained  by  an  artificial  ditch  cut 
through  both,  and  he  grants  to  another  person  one  of  the 
fields,  neither  he  nor  the  grantee  can  stop  up  the  drain,  for 
there  would  be  the  same  right  of  drainage  as  before,  since  the 
land  was  sold  with  the  drain  in  it.  I  agree  with  the  law  as 
laid  down  in  that  case,  and  I  think  it  may  be  supported  with- 
out extending  the  doctrine  to  a  right  of  way." 

A  similar  decision  was  given  by  the  House  of  Lords,  on 
appeal  in  the  Scotch  case  of  Ewart  v.  Cochrane.-^    In  that  case 

M  H.  &  C.  113;  31  L.  J.  Exch.  3C4. 
■^4  Macq.  117. 


ACQUISITION   BY   GRANT.  117 

an  owner  of  two  adjoining  properties,  made  a  tanyavd  in  one, 
and  he  laid  a  drain  from  the  tanyard  to  a  cesspool  in  Ewart  v. 
the  other  property,  which  was  a  garden.  Subse-  Cochrane. 
quently  he  sold  the  tanyard  and  afterwards  the  garden,  the 
drain  remaining  unaltered.  It  was  held  that  the  purchaser 
of  the  tanyard  was  entitled  to  the  use  of  the  drain.  In  his 
judgment  Lord  Campbell  laid  down  the  principles  of  law  in 
the  following  terms,  and  distinctly  referred  to  Pyer  v.  Carter, 
without  disapprobation :  "  I  consider  the  law  of  Scotland  as 
well  as  the  law  of  England  to  be  that  when  two  properties 
are  possessed  by  the  same  owner  and  there  has  been  a  sever- 
ance made  of  part  from  the  others,  anything  which  was  used 
and  was  necessary  for  the  comfortable  enjoyment  of  that  part 
of  the  property  which  is  granted  shall  be  considered  to  follow 
from  the  grant,  if  there  are  the  usual  words  in  the  convey- 
ance. I  do  not  know  whether  the  usual  words  are  essentially 
necessary  ;  but  where  there  are  the  usual  words,  I  cannot 
doubt  that  that  is  the  law.  In  the  case  of  Pyer  v.  Carter  that 
is  laid  down  as  the  law  of  England,  which  will  apply  to  any 
drain  or  any  other  easement  which  is  necessary  for  the  enjoy 
ment  of  the  property.  And  we  have  quotations  from  the 
Scotch  authorities  showing  that  the  law  is  the  same  in  both 
parts  of  the  island." 

In  Worthington   v.  Gimson,^  the  case   of  Pyer  v.    Worthing- 
Carter  was  noticed,  and  its  authority  was  not  dis-   son. 
puted. 

In  Pearson  v.  Spencer,^  which  was  an  action  about  a  right 
of  way,  it  was  said  in  the  judgment  of  the  Court  of  pearson  ». 
Queen's  Bench :  "  We  do  not  think  that  on  sever-  Spencer. 
ance  of  two  tenements  any  right  to  use  ways,  which  during 
the  unity  of  possession  have  been  used  and  enjoyed  in  fact, 
passes  to  the  owner  of  the  dissevered  tenement,  unless  there 
be  something  in  the  conveyance  to  show  an  intention  to  create 

"  2  E.  &  E.  618  ;  29  L.  J.  Q.  B.  116. 

*  1  B.  &  S.  571.  Affirmed  in  Exchequer  Chamber,  3  B.  &  S.  761.  In 
Glave  V.  Harding,  3  H.  &  N.  944,  27  L.  J.  Exch.  286,  it  was  intimated 
that  a  right  of  way  may  be  a  continuous  and  apparent  easement,  and, 
as  such,  pass  by  implied  grant. 


118  ACQUISITION   OF   EASEMENTS. 

the  right  to  use  these  ways  de  novo.  We'  agree  with  what  is 
said  in  "Worthington  v.  Ginison,  tliat  in  this  respect  there  is  a 
distinction  between  continuous  easements,  such  as  drains,  &c., 
and  discontinuous  easements,  such  as  a  right  of  way." 

The  next  case  in  which  this  doctrine  of  hiw  is  recognized, 
Polden  V.  i^^d  recognized,  indeed,  in  very  express  terms,  is  Pol- 
Bastard,  ^yj^  ^_  Bastard,*  in  the  Exchequer  Chamber.  Erie, 
C.  J.,  in  his  judgment  in  that  case,  in  wliich  the  other  judges 
concurred,  said  :  "  There  is  a  distinction  between  easements, 
such  as  a  right  of  way,  or  easements  used  from  time  to  time, 
and  easements  of  necessity,  or  continuous  easements.  The 
cases  recognize  this  distinction,  and  it  is  clear  law  that  upon  a 
severance  of  tenements,  easements  used  as  of  necessity,  or  in 
their  nature  continuous,  will  pass,  by  implication  of  law,  with- 
out any  words  of  grants  ;  but  with  regard  to  easements  which 
are  used  from  time  to  time  only,  they  do  not  pass  unless  the 
owner,  by  appropriate  language,  shows  an  intention  that  they 
should  pass." 

In  the  recent  case  of  Watts  v.  Kelson,'^  the  principle  of  the 
Watts ».  decision  in  Pyer  v.  Carter  was  followed  by  the  lords 
Kelson.  justices,  and  the  passage  above  cited  from  the  judg- 
ment of  Erie,  C.  J.,  in  Polden  v.  Bastard,  was  expressly  ap- 
proved. 

The  above  are  the  principal  cases  in  which  this  important 
doctrine  has  been  supported  ;  but  it  will  be  observed  that 
though  Pyer  v.  Carter  is  an  authority  that  apparent  and  con- 
tinuous easements  are,  in  the  absence  of  express  stipulation, 
both  granted  and  reserved  by  implication  on  partition  of  an 
estate,  the  passage  quoted  from  Polden  v.  Bastard  appears 
merely  to  contemplate  the  grant  of  such  easements  by  the 
original  owner  of  the  whole  to  his  grantee  of  a  portion  of  an 
estate,  and  not  a  reservation  of  any  easements  in  the  land  sold 
for  the  benefit  of  the  grantor. 

A  case  in  which  the  doctrine  was  very  much  limited,  and 

Suffieid  V.     in  wliicli  the  authority  of  Pyer  v.  Carter  was  ques- 

'"°^°"         tioned,  is  Suffield  v.  Brown,*  which  was  argued  be- 

'■  L.  R.  1  Q.  B.  156  ;  35  L.  J.  Q.  B.  92 ;   7  B.  &  S.  130. 
•'■  L.  R.  6  Ch,  App.  166  ;  40  L.  J.  Ch.  126. 
*  4  De  G.,  J.  &  S.  185;  33  L.  J.  Ch.  249. 


ACQUISITION   BY   GRANT.  119 

fore  Lord  Westbury,  L.  C.  It  is  unnecessary  here  to  describe 
the  facts  of  this  case,  but  the  observations  of  Lord  Westbury 
are  to  the  effect  that  on  a  grant  by  an  owner  of  an  entire 
heritage,  of  part  of  that  heritage,  as  it  is  then  "  used  and 
enjoyed,"  there  will  pass  to  the  grantee  all  those  continuous 
and  apparent  easements  which  have  been,  and  are  at  the  time 
of  the  grant,  used  by  the  owner  of  the  entirety,  for  the  bene- 
fit of  the  parcel  granted ;  but  that  if  the  owner  sells  the  ser- 
vient part  of  his  estate,  there  are  not  reserved  to  him,  in  the 
absence  of  express  stipulation,  such  continuous  and  apparent 
easements  as  have  been  used  by  the  owner  for  the  benefit  of 
the  unsold  portion  during  the  unity  of  ownership,  for  the 
grantor  cannot  derogate  from  his  own  absolute  grant  so  as  to 
claim  rights  over  the  land  sold,  even  though  they  were  quasi- 
easements  of  an  apparent  and  continuous  character  at  the 
time  of  the  grant.  His  lordship  next  proceeded  to  explain 
the  fallac}'^  in  the  judgment  of  the  Court  of  Exchequer  in  the 
case  of  Pyer  v.  Carter,  and  declared  that  he  could  not  look 
upon  that  case  as  rightly  decided,  and  that  he  must  wholly 
refuse  to  accept  it  as  any  authority.  It  should  be  observed, 
however,  that  Lord  Westbury  was  careful  to  explain  that 
throughout  his  judgment  he  was  speaking  of  cases  where  the 
easement  claimed  had  no  legal  existence  anterior  to  the  unity 
of  ownership,  but  is  claimed  as  ari^ng  by  implied  grant  or 
reservation  upon  the  disposition  of  one  of  two  adjoining  tene- 
ments by  the  owner  of  both.  The  opinion  of  Lord  West- 
bury was  approved  by  Lord  Chelmsford,  L.  C,  in  crossiey  v. 
the  case  of  Crossley  and  Sons  (Limited)  v.  Light-  Light- 
owler.' 

The  result    of   these  decisions    seems    to  be    this :    If  the 
owner  of  an  estate  has  been  in  the  habit  of  using   t>     ,,     , 

^     Results  of 

5'Mas«-easements  of  an  apparent  and  continuous  char-  the  author- 
acter  over  one  part  for  the  benefit  of  the  other  part 
of  his  property,  which  were  first  used  during  the  unity  of 
ownership,  if  he  sells  the  quasi-domina.nt  part,  the  purchaser 
will,  in  the  absence  of  express  stipulations,  and  independently 
of  the  general  words  in  the  deed  of  conveyance,  become  enti- 
'  L.  R.  2  Ch.  App.  at  p.  486  ;  36  L.  J.  Ch.  at  p.  590. 


120  ACQUISITION   OF   EASEMENTS. 

tied  to  the  easements  by  implied  grant,  but  if  he  sells  the 
quasi-sery'ient  part,  those  easements  will  not  be  reserved  by 
implied  grant :  if  the  quasi-esisements  had  legal  existence,  as 
easements,  before  the  unity  of  ownership,  and  the  ^'wasi'-domi- 
nant  tenement  is  sold,  the  purchaser,  as  in  the  other  case,  will 
become  entitled  to  the  easements,  but  what  would  be  the  re- 
sult if  the  quasi-sery'ient  tenement  is  sold  is  apparently  an  open 
question,  now  that  the  authority  of  Pyer  v.  Carter  is  so  much 
shaken  ;  for  Lord  Westbury  did  not  extend  his  judgment  in 
Suffield  V.  Brown  to  this  point,  but  in  all  probability  it  would 
be  said  that  the  grantor  could  not  derogate  from  his  own 
grant,  and  that,  as  he  sold  the  quasi-servient  tenement  with- 
out making  any  stipulation  for  the  reservation  of  the  extin- 
guished easements,  it  would  be  in  derogation  of  his  grant  if 
he  could  claim  them  ;  it  might  also  be  said  that,  as  the  vendor 
made  no  mention  of  the  easements  in  his  deed,  he  must  be 
presumed  to  have  intended  not  to  reserve  them.  Should  this 
be  so  decided,  it  would  make  no  difference  whether  the  quasi- 
easements  were  first  used  during  unity  of  ownership,  or  le- 
gally existed  as  easements  before  the  ownership  was  united. 

THE    AMERICAN    AUTHOKITIES 

on  this  subject  of  grants  of  quasi-ensements,  upon  the  convey- 
ance of  one  of  two  lots,  iji  or  upon  one  of  which  the  owner  of 
both  has  imposed  some  specific  use  for  the  benefit  of  the  other, 
while  he  owned  both,  seem  to  range  themselves  under  several 
distinct  classes,  the  decisions  in  which  are  tolerably  consistent, 
although  all  the  dicta  in  them  may  not  be. 

1.  The  first  class  consists  of  those  where  the  grant  is  of 
some  estate,  described  generally,  and  not  by  specific  metes 
and  bounds,  as  "of  a  mill,"  a  "  mill  privilege,"  "  my  dwelling- 
house,"  and  the  like ;  in  such  cases  all  the  parts  and  parcels 
of  the  mill,  mill  privilege,  or  house,  pass  with  the  mill,  &c., 
as  a  portion  of  the  same,  although  such  portions  may  extend 
into,  over,  or  under  the  remaining  land  of  the  grantor.  They 
are  not  "  easements  "  over  such  remaining  land,  because  the 
same  person  owned  both  estates  ;  they  are  not  "  appurte- 
nances," in  a  proper  legal  sense,  for  a  similar  reason  ;  and 


ACQUISITION   BY   GRANT.  121 

they  do  not,  therefore,  pass  merely  under  those  words,  but 
rather  as  part  and  parcel  of  the  thing  conveyed  ;  and  so  would 
equally  pass,  although  there  were  used  in  the  deed  no  such 
words  as  "  with  all  easements,"  or  with  all  the  "  privileges 
and  appurtenances."  It  is  on  the  same  principle  that  under 
a  grant  of  "  a  house,"  or  "  a  mill,"  the  land  under  it  passes, 
though  nothing  be  said  of  land  in  the  deed.^ 

For  a  similar  reason,  if  A.  owns  two  adjoining  houses,  with 
one  of  which  a  coal  cellar  has  long  been  used,  but  which  is  in 
fact  under  the  other,  a  grant  of  the  first  by  ge7ieral  tvords 
may  also  pass  the  cellar  within  the  boundaries  of  the  other.^ 

And  pi'obably  the  old  case  of  Nicholas  v.  Chamberlain,  Cro. 
Jac.  121,  really  proceeded  upon  the  ground  not  of  an  ease- 
ment or  an  incorporeal  hereditament,  but  because  the  whole 
of  the  conduit  through  which  the  water  ran  was  a  corporeal 
part  of  the  house,  just  as  in  many  old  cities  there  are  cellars 
projecting  under  other  houses.  The  court  seem  to  have 
thought  it  was  not  merely  the  right  to  the  passage  of  water, 
but  that  the  conduit  itself  passed  as  part  of  the  house,  just" 
as  a  flue  passing  through  another  man's  house.^ 

2.  The  second  class  of  cases  is  those  where  the  g'Mas^-ease- 
ment  or  privilege,  as  used  by  the  grantor,  is  actually  "  neces- 
sary "  for  the  use  and  enjoyment  of  the  estate  granted ;  and 
here  all  agree  that  the  grantee  takes  the  right  to  continue  to 
use  the  remaining  grantor's  premises  for  the  benefit  of  the  es- 
tate conveyed,  in  a  reasonable  way  and  manner  ;  of  which  the 
mode  of  user  by  the  grantor  himself  while  he  owned  both  es- 
tates would  be  pertinent,  but  perhaps  not  conclusive,  evi- 
dence. And  this  rule  is  universally  agreed  to,  whether  the 
easement  claimed  be  a  visible  and  obvious  one,  i.  e.,  continu- 
ous and  apparent,  or  the  opposite,  as  in  the  case  of  a  way,  or 

^  This  familiar  principle  was  recognized  in  the  following,  among  many 
other  American  cases:  Whitney  v.  Olney,  3  Mason,  280. 

2  See  Press  v.  Parker,  2  Bing.  456,  better  reported  in  10  Moore,  158. 

^  See  the  opinion  of  Lord  Justice  James  in  Wheeldon  v.  Burrows,  28 
Weekly  Rep.  200.  To  the  same  class  of  cases  also  belong  Riddle  v.  Lit- 
tlefield,  53  N.  H.  503;  Conistock  v.  Johnson,  46  N.  Y.  615  ;  Voorhees  v. 
Burchard,  55  N.  Y.  98  ;  Blaine  v.  Chambers,  1  Serg.  &  Rawle,  169  ;  United 
States  V.  Appleton,  1  Sumn.  492 ;  Doyle  v.  Lord,  64  N.  Y.  432. 


122  ACQUISITION   OF   EASEMENTS. 

right  of  passage.  Necessity  makes  no  distinctions  of  this 
kind.  And  this  rule  applies  equally  in  favor  of  a  grantor,  who 
impliedly  retains  a  right  to  use  such  ^'j^asf-easements  over  the 
estate  granted<  and  in  favor  of  that  retained,  unless  it  be  ab- 
solutely inconsistent  with  the  known  use  and  object  of  the 
grant,  as  where  it  is  intended  to  be  entirely  covered  by  a 
bailding,  &c.i 

The  case  of  Thayer  v.  Payne  ^  furnishes  an  excellent  illus- 
tration of  this  point.  There  the  owner  of  two  adjoining  lots, 
from  one  of  which  a  drain  was  then  constructed  through  the 
other,  sold  the  former,  without  any  mention  of  the  drain,  re- 
taining the  latter ;  and  it  was  held  that  the  deed  itself,  even 
without  an}'^  words  of  "  privileges  and  appurtenances,"  carried 
with  it  a  right  to  continue  the  drain,  if  necessary  to  the  ben- 
eficial enjoyment  of  the  estate  granted,  and  another  drain  could 
not  be  conveniently  built  by  reasonable  labor  and  expense. 

3.  The  third  class  of  cases  is  where  the  ^'wasz-easement 
claimed  by  the  grantee  is  not  really  "  necessary  "  for  the  en- 
joyment of  the  estate  granted,  but  is  highly  convenient  and 
beneficial  therefor  ;  and  here  the  modern  rule  in  America  is 
that  if  such  easement  is  "  continuous  and  apparent  "  at  the 
time  of  the  grant,  it  passes  to  the  purchaser  with  his  estate  ; 
otherwise  not.^  Thus,  where  A.  sold  one  of  two  lots,  the 
windows  in  a  building  on  one  of  which  overlooked  the  yard  of 
the  other,  with  shutters  swinging  out  over  it,  and  fire-escapes 
leading  into  it,  and  retained  such  other  lot,  and  subsequently 
sold  it  to  a  third  party,  the  latter  would  take  subject  to  the 
obvious  right  of  the  first  grantee  to  the  easement  in  the  yard.* 

The  leading  case  in  America,  perhaps,  in  support  of  the 

^  Seeley  v.  Bishop,  19  Conn.  128.  This  rul  >  is  also  uniformly  agreed 
to.  See  Briaham  v.  Smith,  4  Gray,  297  ;  Collins  v.  Prentice,  15  Conn.  39; 
Pingree  v.  McDuffie,  56  N.  H.  306. 

2  2  Cush.  327.     See  Culverwell  v.  Lockington,  24  Up.  Can.  C.  P.  611. 

*  See  Fetters  v.  Humj)hreys,  3  C.  E.  Green,  260  ;  4  lb.  4  71 ;  Standiford 
V.  Goucly,  6  W.  Virg.  364  ;  Oliver  v.  Hook,  47  Md.  301;  Lanier  v.  Booth, 
50  Miss.  410;  Collier  v.  Pierce,  7  Gray,  20;  Denton  v.  Leddell,  23  N.  J. 
Eq.  67;  Harris  v.  Smith,  40  Up.  Can.  Q.  B.  33,  a  very  elaborate  case  on 
this  point. 

*  See  Havens  v.  Klein,  51  How.  Pr.  R.  82. 


ACQUISITION   BY    GRANT.  123 

doctrine  of  the  conveyance  of  what  are  here  called  quasi-ease- 
ments, upon  a  sale  of  part  of  an  estate,  is  that  of  Lampman  v. 
Milks.i  There  a  man  owned  a  tract  of  forty  acres,  through  a 
corner  of  which,  about  half  an  acre,  a  small  brook  naturally 
flowed,  but  the  owner  diverted  it  from  its  natural  course  so 
that  it  flowed  through  an  artificial  channel  in  a  different  di- 
rection to  a  larger  stream.  Ten  yeai*s  after  such  diversion 
he  sold  the  half-acre  lot  to  the  plaintiff,  who  erected  a  house 
uiDon  it ;  and  subsequently  sold  the  balance  to  the  defendant 
with  the  stream  running  in  its  artificial  channel,  and  four 
years  afterwards  the  defendant  clammed  up  the  entrance  to 
the  artificial  channel  and  caused  the  stream  to  return  to  its 
original  bed  and  overflow  the  plaintiff's  house  lot,  and  it  was 
held  the  second  purchaser  could  not  thus  return  the  water  into 
its  old  channel.^  Phillips  v.  Phillips  ^  inclines  in  the  same  di- 
rection. There  a  father  orally  divided  his  farm  among  his 
three  sons,  retaining  the  homestead  for  his  own  residence. 
Each  son  took  possession,  and  had  exclusive  occupation  of  the 
portion  allotted  to  him.  From  one  of  them  a  way  was  laid 
out  over  the  homestead,  and  used  for  many  years  as  the  most 
convenient  way  for  that  son  to  church,  to  mill,  the  coal  bank, 
and  the  neighboring  village.  It  passed  near  the  father's 
house,  and  was  used  by  him  either  for  hauling  fuel  to  his 
house  or  in  going  to  his  son's  residence,  and  was  fenced  out 
into  a  lane.  After  many  years  the  father  died,  leaving  by 
will  to  his  three  sons  the  portions  occupied  by  them,  and  the 
homestead  to  his  widow  for  life  ;  and  soon  after  the  way  was 
barred  up,  but  it  was  held  the  right  of  way,  though  not  a  ne- 
cessity, passed  by  the  will,  "  either  as  appurtenant  or  as  par- 
cel of  the  property  "  as  finally  devised  to  the  son  occupying  it.^ 

1  21  N.  Y.  505.     See  Young  v.  AVilson,  21  Grant,  Up.  Can.  144. 

^  And  see  New  Ipswich  Factory  v.  Bachelder,  3  N.  H.  190;  Coolidge  v. 
Hager,  43  Vt.  9  ;  Seibert  v.  Levan,  8  Barr,  383.  Cave  v.  Crafts,  53  Cal. 
135  (1878),  is  much  like  Lampman  v.  Milks.  Dunklee  v.  The  Wilton  Rail- 
road Co.  24  N.  H.  489,  contains  an  elaborate  judgment  in  support  of  this 
view. 

8  48  Penn.  St.  178  (1864). 

*  And  Thompson  v.  Miner,  30  Iowa,  386,  is  much  like  Phillips  v.  Phil- 
lips.    See,  also,  as  favoring  the  same  view,  Kieffer  v.  Imhoff,  26  Penn.  St. 


124  ACQUISITION   OF   EASEMENTS. 

4.  The  fourth  class  is  those  where  tlie  grantor  himself 
claims  such  right,  by  "  implied  reservation,"  over  the  estate 
granted.  And  lieie  the  prevailing  rule  seems  to  be  that  al- 
though the  alleged  easement  be  both  continuous  and  appar- 
ent, yet  if  it  be  not  "  necessary,"  it  will  not  be  implied  in 
favor  of  the  grantor  and  against  the  grantee,  since  that  would 
allow  the  grantor  to  derogate  from  his  grant.  Therefore,  if 
a  mill  owner  sells  a  portion  of  his  land  which  is  in  fact  then 
flowed  b}^  his  dam,  but  without  any  reservation  of  a  right  to 
continue  so  to  flow,  he  does  not  retain  such  right  by  implica- 
tion ;  ^  even  though  he  would  give  it  by  implication,  had  he 
sold  the  mill  and  retained  the  dam  ;  but  even  this  last  prop- 
osition is  not  universally  admitted. 

The  question  thus  arises,  as  is  seen  in  two  classes  of  cases, 
one  where  the  right  is  claimed  by  a  grantee  over  other  remain- 
ing land  of  the  same  grantor,  and  one  where  the  right  is 
claimed  by  a  grantor  over  the  estate  granted,  for  the  benefit  of 
his  remaining  land.  Possibly  by  the  English  law  there  may 
be  a  ditference  in  the  two  cases,  but  it  is  not  clear  that  any 
difference  in  principle  should  exist.  If  there  be  any  differ- 
ence, it  is  that  a  reservation  in  favor  of  a  grantor  will  be  im- 
plied only  when  the  easement  is  actually  necessary  for  the  part 
retained  ;  while  it  may  exist  in  favor  of  the  grantee  and  over 
the  remaining  land  of  the  grantor,  when  actually  used  with 
it  before  the  severance,  and  when  highly  convenient  for  its 
full  beneficial  enjoyment,  though  not  actually  necessary .^ 

Perhaps  the  leading  case  in  America,  decided  after  Pyer  v. 
Carter,  and  in  which  that  decision  was  not  approved,  is  Car- 
brey  v.  Willis.^  There  one  Blanchard  owned  two  adjoining 
estates  on  or  near  High  Street,  in  Boston,  on  one  of  which 
was    an    old   house,  with    an    underground    drain    extending 

438;  McCarty  u.  Kitchenman,  47  Penn.  St.  239;  Pennsylvania  Railroad 
Co.  V.  Jones,  50  Penn.  St.  417;  Overdeer  v.  Updegraff,  69  Penn.  St.  Ill  ; 
Cannon  v.  Boyd,  73  Penn.  St.  179. 

1  See  Burr  v.  Mills,  21  Wend.  289;  Preble  v.  Reed,  17  Me.  169.  And 
Bee  Manning  v.  Smith,  6  Conn.  289;  Plimpton  v.  Converse,  42  Vt.  712; 
Johnson  v.  Jordan,  2  Met.  234;  Leroy  v.  Piatt,  4  Paige,  77. 

2  See  Dillman  j;.  Hoffman,  38  Wis.  572. 
8  7  Allen,  364  (1863). 


ACQUISITION   BY    GRANT.  125 

throufrh  the  other,  which  last,  Blanchard,  in  1812,  conveyed 
by  deed  to  R.  in  the  usual  form,  with  general  covenants  of 
warranty  and  freedom  from  incumbrances,  which  title  became 
vested  in  the  defendant  Willis  as  early  as  1821.  In  1815, 
three  years  after  his  first  conveyance,  Blanchard  conveyed  the 
house  to  which  the  drain  was  connected  to  otlier  parties,  and 
the  question  was  whether  anything  was  excepted  from  the 
grant  to  R.  in  1812,  and  which  continued  to  form  a  part  of 
the  estate  still  retained  by  the  grantor.  And  the  court  held 
that  where  the  grant  of  one  estate  precedes  that  of  the  other, 
no  easement  can  be  considered  as  reserved  by  implication,  un- 
less it  is  de  facto  annexed  and  in  use  at  the  time  of  the  grant, 
and  is  necessary  to  the  enjoyment  of  the  estate  tvhich  the 
grantor  retains.  And  such  necessity  cannot  be  deemed  to 
exist,  if  a  similar  privilege  can  be  secured  by  reasonable 
trouble  and  expense.  See  pp.  368,  369.  This  last  suggestion 
seems  to  be  quite  opposed  to  the  rule  laid  down  in  Pyer  v. 
Carter,  with  reference  to  which  the  learned  judge  says: 
"  The  terms  of  the  deed  are  not  given  in  the  report  of  that 
case,  and  the  decision  may  perhaps  be  supported  on  the 
ground  that  the  conveyance  was  of  part  of  a  house,  having  ob- 
vious existing  relations  to  and  dependencies  upon  the  other 
part  of  the  building.  As  in  the  grant  of  a  messuage,  a  farm, 
a  manor,  or  a  mill,  many  things  will  pass  which  have  been 
used  with  the  principal  thing,  as  parcel  of  the  granted  prem- 
ises, which  would  not  pass  under  the  grant  of  a  piece  of  land 
by  metes  and  bounds.  In  such  cases  it  is  only  a  question  of 
the  construction  of  the  terms  of  description."  And  the  rule  of 
Carbrey  v.  Willis  was  again  applied  by  the  same  court  in 
Randall  v.  McLaughlin,^  in  which  it  was  held  that  if  the 
owner  of  two  adjoining  estates,  through  one  of  which  a  drain 
exists  for  the  benefit  of  the  other,  conveys  them  both  on  the 
same  day  to  diiferent  grantees,  no  right  to  the  drain  passes  as 
an  easement  or  appurtenance  to  the  upper  estate,  unless  it 
was  necessary  for  the  beneficial  enjoyment  thereof,  which 
would  not  exist  if  an  equally  beneficial  drain  could  be  built 
with  reasonable  labor  and  expense.  In  fact,  the  principle  had 
1  10  Allen,  366  (1865). 


126  ACQUISITION   OF  EASEMENTS. 

been  adopted  in  that  State,  long  before,  in  the  case  of  John- 
son V.  Jordan.^  There,  one  William  Breed  owned  two  ad- 
joining houses  on  Temple  Street,  Boston,  and  in  1804  built 
a  drain  from  one  lot,  which  he  leased,  through  the  other, 
■which  he  occupied,  to  the  public  sewer.  This  drain  was  used 
by  the  occupants  of  both  estates  until  1825,  when  Breed's 
successor  sold  both  estates,  on  the  same  day,  at  public  auc- 
tion, to  different  purchasers  ;  the  leased  estate,  from  which  the 
drain  was  built,  to  K.  ;  and  the  other,  through  which  it  ran, 
to  T.  The  deed  to  K.  made  no  mention  of  the  drain,  nor  of 
"  privileges  and  appurtenances,"  but  described  it  simply  by 
metes  and  bounds,  and  the  deed  to  T.  contained  no  allusion  to 
such  drain,  but  both  referred  to  each  other,  and  to  certain 
provisions  in  regard  to  light  and  windows,  and  an  easement 
for  a  gutter,  in  favor  of  one  or  the  other  estate,  showing  that 
the  matter  of  easements  was  in  the  minds  of  the  parties.  For 
ten  years  longer,  the  waste  water  from  K.'s  estate  continued  to 
flow  through  the  drain  in  T.'s  premises,  without  objection,  when 
T.'s  successor  intentionally  stopped  it  up  ;  and  it  was  held, 
after  the  most  elaborate  argument,  that  no  right  to  the  drain 
existed,  if  K.,  by  reasonable  labor  and  expense,  could  make 
another  drain  without  going  through  the  other  estate.  Such 
is  now  the  established  law  of  Massachusetts.^  It  has  also 
been  followed  and  approved  in  Mjiine,  after  a  full  discussion 
and  examination  of  Pyer  v.  Carter.  See  Warren  v.  Blake, ^ 
which  was  a  case  of  two  simultaneous  conveyances.  Still  more 
positively  is  it  asserted  in  Dolliff  v.  Boston  and  Maine  Rail- 
road,* that  a  right  of  drainage  through  a  grantor's  remaining 
land  does  not  pass  by  implication,  although  a  drain  has  been 
constructed  through  such  land,  and  is  in  actual  use,  though 
not  apparent,  at  the  time  of  the  conveyance,  unless  such  right 
is  clearly  necessary  to  the  beneficial  enjoyment  of  the  estate 
conveyed ;  and  it  is  not  necessary,  if  a  new  drain  can  be 
constructed  at  an  expense  of  one  hundred  and  seventy-five 
dollars. 

1  2  Met.  234  (1841). 

2  See  Parker  v.  Bennett,  11  Allen,  391;  Russ  v.  Dyer,  125  Mass.  291. 
8  54  Me.  287  (1866). 

*68Me.  173  (1878). 


ACQUISITION   BY  GRANT.  127 

In  New  York,  also,  it  has  been  held  that  if  Pyer  v.  Carter 
extends  any  farther  than  to  cases  where  a  drain  is  necessary 
to  both  the  house  conveyed  and  the  house  retained,  and  this 
arrangement  is  apparent  and  obvious  to  an  observer,  "  it 
is  not  in  accordance  with  the  current  of  authorities."  But- 
terworth  v,  Crawford  ^  was  also  a  case  of  a  drain,  from  a 
privy  vault,  under  the  division  line  between  the  two  estates, 
Nos.  83  and  85,  on  a  street  in  New  York  city,  owned  by  the 
same  person.  The  owuer  of  both  conveyed  to  the  defendant 
without  reservation  lot  85  through  which  the  drain  from  the 
vault  extended,  retaining  the  other,  No.  83,  for  a  short  time, 
and  then  conveyed  it  to  the  plaintiff;  after  which  the  defend- 
ant, not  knowing  of  the  existence  of  the  drain,  and  there 
being  nothing  to  indicate  its  existence,  cut  off  the  drain,  in 
building  on  his  own  land;  and  it  was  held  he  was  not  liable  to 
the  purchaser  of  lot  No.  83,  chiefly  on  the  ground  that  the 
easement  was  not  apparent  at  the  time  of  the  grant.^ 

In  New  Jersey,  also,  it  has  been  distinctly  held  that  dis- 
continuous easements,  not  constant  and  apparent,  as  rights  of 
way,  are  created  by  a  severance  of  tenements,  only  when  they 
are  necessary  ;  a  necessity  that  cannot  be  obviated  by  a  sub- 
stitute on  or  over  the  estate  claiming  the  easement.^ 

Since  the  last  English  edition  of  this  work,  this  subject  has 
been  much  discussed  in  England,  and  it  has  been  distinctly 
held,  notwithstanding  the  cases  of  Pyer  v.  Carter,  and  Watts 
V.  Kelson,  that  although  an  easement  be  both  continuous  and 
apparent,  there  is  no  implied  reservation  of  it,  upon  the  sev- 
erance of  two  tenements,  unless  it  be  also  an  easement  of  ne- 
cessity.* 

146  K  Y.  353  (1871).  • 

2  See,  also,  the  recent  important  case  of  Parsons  v.  Johnson,  68  N.  Y. 
62  (1877). 

3  Fetters  v.  Humphreys,  2  C.  E.  Green,  260  (1867).  And  see  Stuyve- 
sant  V.  Woodruff,  1  Zab.  133;  Brakely  v.  Sharp,  1  Stock!.  9;  2  lb.  206. 
So  in  Rhode  Island,  Evans  v.  Dana,  7  R.  I.  306 ;  Providence  Tool  Co.  v. 
Corliss  Steam  Engine  Co.  9  R.  I.  564;  O'Rorke  v.  Smith,  11  R.  I.  263. 

*  Wheeldon  v.  Burroughs,  27  Weekly  Rep.  115;  12  Ch.  Div.  31.  There 
A.  conveyed  a  part  of  his  laud  to  B.,  retaining  the  rest,  but  without  any 
reservation  of  a  right  to  light  and  air.    Subsequently  he  sold  the  adjoining 


128  ACQUISITION   OF   EASEMENTS. 


ACQUISITION    OF    EASEMENTS     BY    VIRTUE     OF     AN    ACT    OF     PARLIA- 
MENT. 

The  next  mode  by  wliich  easements  may  be  acquired  is 
under,  or  by  virtue  of,  tlie  provisions  of  an  ACT  OF 
tion  under  PARLIAMENT.  Some  observations  have  ah-eady  been 
a  *  a  u  e.  j^^.^jg  jj^  ^jjg  early  part  of  tliis  chapter  on  this  mode 
of  acquiring  easements,  and  a  doubt  was  expressed  whether 
an  easement  acquired  under,  or  by  virtue  of,  an  act  of  par- 
liament, is  not  in  the  eye  of  the  law  acquired  under  an  im- 
plied grant  presumed  to  have  been  made  by  the  owner  of  the 
servient  tenement  in  favor  of  the  dominant  owner.  Without 
discussing  this  point  more  fully,  it  is  sufficient  for  the  purpose 
of  this  treatise  to  consider  the  acquisition  of  easements  under 
an  act  of  parliament  as  a  distinct  mode  b}'^  which  they  may 
be  gained. 

Easements    may  be  acquired  under  an   act  of  parliament, 

not  only  by  the  express  terras  of   the  act,  as  in  cases 

terins.^or^    where  a  severance  of  surface  land  from  the  subja- 

the  appar-        ^  mines  is  created   by  act  of  parliament,  and  a 

ent  iiitfu-  -J  i-  ' 

tion  of  the  right  is  expressl}'  given  to  the  mine-owner  to  dig 
through  the  surface  to  obtain  the  minerals,  and 
carry  them,  when  gained,  over  the  land,  or  in  the  case  of  the 
Railways  Clauses  Act,  1845,  which  gives  a  general  power  for 
all  persons  to  run  engines  and  carriages  over  a  railway,"*  but 
they  may  be  also  given  by  the  act  by  implication,  according 
to  its  apparent  intention  ;  thus,  in  the  case  of  Bishop  v.  North," 
a  canal  act  gave  power  to  mine-owners,  if  they  should  find  it 
expedient,  to  make  any  railways  or  roads  over  the  intermedi- 
ate land  of  strangers  from  their  mines  to  the  canal,  and  it 
was  held  that  the  power  to  make  anf/  railways  was  not  to  be 
limited  to  that  class  of  railways  known  when  the  act   was 


lot  retained  to  C,  who  claimed  a  right  of  light  over  B.'s  lot,  but  which,  in 
the  opinion  of  the  court,  was  not  an  easement  of  necessitjr.  This  was 
affirmed  in  the  court  of  appeal.     28  AVeekly  Rep.  196. 

"•  See  The  Powell  Duffryn  Steam  Coal  Company  v.  The  Taff  Vale  Rail- 
way Company,  L.  R.  9  Ch.  App.  331 ;  43  L.  J.  Ch.  575. 

"  11  M.  &  W.  418 ;  12  L.  J.  Exch.  362. 


ACQUISITION  UNDER   A   STATUTE.  129 

passed,  but  that  it  was  the  intention  of  the  act  to  authorize 
the  making  of  such  raih-oads  as  should  from  time  to  time  be 
found  necessary,  and  that  power  was  given  by  implication  to 
use  locomotive  engines  thereon,  although  those  machines  were 
unknown  when  the  act  was  passed. 

The  acquisition  of  an  easement  under  the  provisions  of  an 
act  of  parUament  may  happen  immediately  on  the 
passing  of  the  act,  or  it  may  be  dependent  on  the   der  a  stat- 
happening  of  a  particular  event  or  the  performance   Uiate"™^' 
of  a  particular  act.     It  is  unnecessary  to  quote  in-    cpncii- 

(•  •   •    •  ■  T        ^  tional. 

stances  of  acquisition  of  easements  immediately  on 
the  passing  of  acts  of  parliament,  and  but  few  will  suffice  to 
exemplify  the  conditional  grant  of  easements.  The  most  com- 
mon instances  of  acquisition  of  easements  by  virtue  of  an  act 
of  parliament  on  the  happening  of  a  particular  event  subse- 
quently to  the  passing  of  the  act,  are  cases  of  the  making  of 
inclosure  awards  under  inclosure  acts,  by  means  of  which 
easements  are  given  to  allottees  of  land  over  the  allotments 
of  other  persons."  Many  other  instances  may  arise,  and  the 
case  of  The  Glamorganshire  Canal  Navigation  Company  v. 
Blakemore^  may  be  cited.  In  that  case  water  was  accustomed 
to  flow  from  a  river  through  an  artificial  watercourse  to  a 
mill,  and  an  act  of  parliament  was  passed  to  enable  a  com- 
pany to  make  a  canal,  and  to  supply  it  with  water  taken  from 
the  river.  To  protect  the  mill  from  damage  from  loss  of 
water,  it  was  ordered  that  a  weir  should  be  made,  but  no  pro- 
vision was  made  in  the  act  to  regulate  the  height  or  width 
of  the  weir.  It  was  decided  in  the  action  that  the  effect  of 
the  act  was  to  apportion  the  water  between  the  canal  and  the 
mill-stream,  the  quantities  for  each  to  be  determined  by  the 
act  of  the  company  in  making  the  canal  and  weir,  so  that  the 
respective  rights  in  the  water  of  the  owners  of  the  canal  and 

o  Sharpe  v.  Hancock,  18  L.  J.  C.  P.  138;  7  M.  &  G.  354;  Rowbotham 
V.  Wilson,  8  E.  &  B.  123 ;  27  L.  J.  Q.  B.  61 ;  8  H.  L.  C.  348;  30  L.  J. 
Q.  B.  49. 

p  5  Bligh  N.  S.  547;  1  CI.  &  F.  262;  The  United  Land  Co.  (Limited) 
V.  The  Great  Eastern  Railway  Co.  L.  R.  10  Ch.  App.  586;  44  L.  J.  Ch. 
685. 

9 


130  ACQUISITION   OF   EASEMENTS. 

the  mill  were  determined  by  the  act  of  making  and  the  mode 
of  constructing  the  weir. 

IN    AMERICA, 

public  highways  are  considered  "  in  the  nature  of  public 
PuMic  easements ;  "  and  as  they  are  often,  perhaps  usually, 

highways,  j^^j^j  ^^j.  j^y  public  authorities,  acting  under  a  stat- 
utory power,  they  furnish  another  illustration  of  easements 
acquired  b}^  statute,  not  mentioned  by  the  author.  That  such 
ways  are  treated  as  easements,  the  landowner  retaining  the 
fee  of  the  soil,  and  the  public  acquiring  only  the  right  of  pas- 
sage, and  the  incidental  right  to  use  the  materials  on  the  way 
laid  out,  for  the  purpose  of  keeping  it  in  repair,  is  familiar  and 
well  settled  law.^ 

So,  too,  in  many  American  states,  statutes  exist  authorizing 
Private  the  public  authorities  to  lay  out  "  private  ways," 
"^^y^-  so  called,  for  the  special  benefit  of  some  particular 

individual,  or  estate,  over  the  land  of  another,  and  in  such 
cases,  also,  the  party  so  benefited  acquires  an  easement  by 
force  of  a  statutory  proceeding  ;  ^  although  in  some  states  the 
public  may  also  use  the  wa}'^  so  long  as  it  exists. 

And  as  in  America  the  interest  acquired  by  railroad- corpo- 

^  .,  ,  rations  in  land  taken  by  them  under  their  statutory 
Railroads.  •  1 1  i  o         -,  ^ 

power  IS   generally  only  an   easement,^  and  not  the 

fee  of  the  soil  (though  perhaps  a  somewhat  more  extensive 

easement  than   the  public  acquire  in  a  highway  ^),  we   have 

still  another  mode  of  acquiring  easements  under  a  statute  not 

noticed  by  Mr.  Goddard  in  the  original  work.     The  taking  of 

^  See  Perley  v.  Chandler,  6  Mass.  454 ;  Robbins  v.  Borman,  1  Pick.  122; 
Barclay  v.  Howell,  6  Pet.  498;  Cole  v.  Drew,  44  Vt.  49;  Adams  v.  Emer- 
son, 6  Pick.  57;  Lyman  v.  Arnold,  5  Mason,  198;  Westbrook  v.  North,  2 
Me.  179;  Read  v.  Leeds,  19  Conn.  188;  Jackson  v.  Hathaway,  15  Johns. 
447;  Hildreth  v.  Lowell,  11  Gray,  345;   Codman  v.  Evans,  5  Allen,  308. 

^  See  Denhani  v.  County  Commissioners,  108  Mass.  202;  Flagg  v.  Flagg, 
16  Gray,  180;  Reynolds  v.  Reynolds,  15  Conn.  83. 

*  See  Quimby  v.  Vermont  Central  Railroad  Co.  23  Vt.  387;  Blake  v. 
Rich,  34  N.  H.  282;  Chapin  v.  Sullivan  Railway  Co.  39  N.  H.  571;  Kel- 
logg V.  Malin,  50  Mo.  500. 

*  See  Brainard  v.  Clapp,  10  Cush.  6;  Connecticut  and  Passumpsic  Rail- 
way Co.  V.  Holton,  32  Vt.  43. 


ACQUISITION   UNDER   A   DEVISE.  131 

land  by  turnpike  companies  by  virtue  of  powers   given  them 
by   statute,  furnish   also   another  instance   of  ease-   Turnpike 
ment  acquired  by  statute.^     So  of  waterworks  and   companies. 
gas  companies.^ 

ACQUISITION    OP    EASEMENTS    UNDER    A    DEVISE. 

Easements  may  also  be  acquired  under  a  Devise.  There 
are  sundry  instances  to  be  found  in  the  reports  of    , 

•^  ^  Acquisition 

claims  to  easements  created,  or  supposed  to  have  under  a 
been  granted,  by  wills,  but  they  do  not  demand  par- 
ticular notice.^  From  these  cases  it  will  be  seen  that  the  rules 
for  construction  of  wills,  as  to  whether  the  words  used  are  suf- 
ficient to  pass,  revise,  or  recreate  easements,  whether  appurte- 
nant or  suspended  or  extinguished  by  unity  of  ownership,  to  a 
devisee,  are  the  same  as  those  for  the  construction  of  deeds.'' 

ACQUISITION    OF    EASEMENTS    BY   PRESCRIPTION. 

Easements  may  be  acquired  by  Prescriptiojst  either  as 
at  common   law  or  under  the  Prescription  Act ;   it    Acquisi- 
therefore  becomes  necessary  to  understand  the  com-    "°"  ^^ 

•/  prescnp- 

mon  law  on  this  subject,  and  the  alterations  which  ^'o'l- 
have  been  introduced  by  act  of  parliament.  Before  the  year 
1832,  the  common  law  alone  governed  this  mode  of  acquiring 
easements,  but  in  that  year  an  act  was  passed  by  which  the 
law  was  amended  in  some  particulars  of  a  most  material  char- 
acter. Tliis  act,  though  not  so  named  by  parliament,  is  com- 
monly called  the  Prescription  Act,*  and  by  that  name  it  is 
designated  in  this  treatise. 

^  See  Tucker  v.  Tower,  9  Pick.  109;  Boston  Water  Power  Co.  v.  Boston 
and  Worcester  Railroad  Co.  16  Pick.  522;  Hooker  v.  Utica  and  Minden 
Turnpike  Co.  12  Wend.  371;  Mahon  v.  New  York  Central  Railroad  Co. 
24  N.  Y.  660;  Kelly  v.  Donahoe,  2  Mete.  (Ky.)  482. 

2  Harback  y.  Boston,  10  Cush.  295;  Providence  Gas  Co.  v.  Thurber,  2 
R.  I.  15. 

?  Pheysey  v.  Vicary,  16  M.  &  W.  484  ;  Polden  i'.  Bastard,  L.  R.  1  Q.  B. 
156  ;  35  L.  J.  Q.  B.  92;  Whalley  v.  Thompson,  1  B.  &  P.  371  ;  Pearson  v. 
Spencer,  1  B.  &  S.  571;  3  lb.  761  ;  Barnes  v.  Loach,  4  Q.  B.  Div.  494. 

»•  See  ante,  pp.  92-109. 

«  Statute  2  &  3  Win.  IV.  c.  71.     See  Appendix. 


132  ACQUISITION   OF  EASEMENTS. 

Prescription  is  described    by  Mr.  Justice    Blackstone '   as 
nieaninsr  at  common  law  a  mode   of  acquiring  real 

Nature  of  '^         ,  ,.      ,  ,  -i 

prcscrip-  property,  when  a  man  could  show  no  other  title  to 
common  what  he  claimed  than  that  he  and  those  under  whom 
'"'^'  he  claimed  had  immemorially  used  to  enjoy  it.     The 

reason  why  the  law  allowed  a  title  to  be  thus  acquired  is  that 
if  a  man  had  (to  use  an  old  and  familiar  phrase)  enjoyed  an 
easement  from  time  whereof  the  memory  of  man  runneth  not 
to  the  contrary,  uninterruptedly,^  —  that  is,  without  dispute, 
—  a  presumption  would  naturally  arise  that  he  had  a  right 
to  that  easement,  which  the  owner  of  the  servient  tenement 
could  not  legally  dispute,  for  no  man  would  suffer  another  to 
enjoy  an  easement  in  his  land  if  he  could  help  it  —  an  ease- 
ment being  a  burden  necessarily  detrimental  to  his  estate. 
Immemo-  Immemorial  usage,  or  usage  from  time  whereof  the 
rial  usage,  n^eniory  of  mail  runneth  not  to  the  contrary,  in  the 
olden  times,  meant  usage  of  which  no  person  could  show  the 
commencement  at  any  period  ;  but,  subsequently,  the  expres- 
sion, "  immemorial  usage,"  was  taken  to  mean  that  the  usage 
had  not  commenced  later  than  the  beginning  of  the  reign  of 
Richard  I.  In  process  of  time,  however,  it  became  impossible 
to  bring  proofs  of  the  existence  of  any  usage  at  even  this  pe- 
riod, and  the  rule  was  adopted  that  usage  might  be  presumed 
to  have  existed  immemorially  upon  proof  of  its  ex- 

Presump-       .  . 

tion  after  istence  for  a  reasonable  time,  and  the  period  of 
yearsMu-  twenty  years  was  at  length  adopted  as  the  time  after 
ration.  which  immemorial  usage  might  be  presumed,  unless 
any  person  contesting  the  right  could  prove  its  non-existence 
at  some  time  subsequently  to  the  reign  of  Richard  I."  If  im- 
memorial usage  was  thus  proved,  it  has  been  said  that  a  pre- 

*  Commentaries,  Vol.11.  —  "Prescription  is  when  a  man  claims  any- 
thing because  he,  his  ancestors  or  predecessors,  or  they  whose  estate  he 
hath  have  had  or  used  it  all  the  time  whereof  no  memory  is  to  the  con- 
trary."    Termes  de  la  Ley,  487. 

^  As  to  an  interruption  of  the  right,  see  Sargent  v.  Ballard,  9  Pick.  251; 
Kilburn  v.  Adams,  7  Met.  33. 

"  Mounsey  v.  Ismay,  34  L.  J.  Exch.  per  Martin,  B.,  at  p.  55  ;  3  H.  &  C. 
486;  Gaved  v.  Martyn,  34  L.  J.  C.  P.  per  Erie,  C.  J.  at  356;  19  C.  B.  N. 
S.  732. 


ACQUISITION   BY   PRESCRIPTION.  133 

sumption  of  right  to  an  easement  would  arise,  and  as  a  right 
to  an  easement  could  only  be  conferred  actually  by  grant,  the 
presumption  of  right  involved,  in  fact,  a  presumption  that  a 
grant  of  the  right  had  been  made  by  the  owner  of  the  servi- 
ent estate  to  the  dominant  owner  or  his  predecessors  in  title, 
and  as  the  deed  of  grant  could  not  be  produced,  that  it  had 
been  accidentally  lost  or  destroyed.  It  follows  from  this  that 
the  whole  theory  of  prescription  depends  upon  the  presump- 
tion of  a  grant  having  been  made  ;  if,  therefore,  it  can  be 
shown  that  no  grant  could  have  been  legally  made,  or  that 
any  easement  lawfully  created  must  have  been  subsequently 
extinguished  by  unity  of  seisin  or  otherwise,  or  if  it  can  be 
shown  to  be  a  very  improbable  thing  that  a  grant  ever  was 
made,  the  presumption  cannot  arise,  and  the  title  by  prescrip- 
tion fails." 

PRESCRIPTION    IN    AMERICA 

depends  mostly  upon  common  law  principles,  not  being  gen- 
erally provided  for  by  special  statutes,  as  in  England  ;  and 
the  local  statutes  being  resorted  to  merely  for  the  purpose  of 
aiding  the  court  by  analogy  in  fixing  the  period  or  length  of 
time  the  use  must  continue ;  and  this  is  somewhat  different  in 
the  various  states.  Such  statutes  being  made  expressly  ap- 
plicable only  to  adverse  possession  of  real  estate,  they  influ- 
ence the  period  of  prescriptive  enjoyment  only  by  inducing 
the  courts  to  adopt  similar  periods  in  cases  of  prescription. 
And  without  minutely  stating  here  the  local  statutes  of  limi- 
tation as  to  adverse  user,  it  may  be  safely  asserted  that  no 
less  period  will  suffice,  and  no  greater  will  be  required  in 
fixing  the  requisite  length  of  enjoyment  to  gain  a  right  to  an 
easement  in  land  by  prescription,  than  to  acquire  the  land 
itself  by  adverse  occupation.  This  element  of  duration  is 
therefore  comparatively  simple.  It  is  the  other  qualities 
which  give  rise  to  the  most  litigation.  For  not  only  must  the 
enjoyment  be  sufficiently  long  continued,  but  it  must  also  be 

"  The  various  modes  by  which  a  prescriptive  title  may  be  rebutted  on 
the  ground  of  impossibility  of  presuming  a  grant  will  be  pointed  out  here- 
after. 


134  ACQUISITION   OF   EASEMENTS. 

adverse,  continuous,  open,  peaceable.  In  the  words  of  Brac- 
ton,^  the  enjoyment  must  be  "  longus  usus,  nee  per  vim,  nee 
Must  b  clam,  nee  precario."  It  must  be  adverse,  and  under 
adver.-e.  a  claim  of  a  legal  right  so  to  do,  and  not  by  the  con- 
sent, permission,  or  indulgence,  merely,  of  the  owner  of  the 
alleged  servient  estate.  This  is  obvious,  where  the  consent, 
permission,  or  license,  is  expressly  given  ;  either  gratuitously 
or  for  a  compensation.^  But  it  is  no  less  true  where  the  per- 
mission or  license  is  implied,  as  it  often  may  be  from  the  facts 
and  circumstances  under  which  the  use  was  enjoyed,  the  in- 
frequency  of  its  actual  enjoyment,  the  little  injury,  if  any,  its 
enjoyment  was  causing  the  other  party,  the  open  and  quasi 
public  situation  in  which  the  land  was  for  the  time  being  left 
by  its  owners.^  All  these,  and  many  other  circumstances,  may 
tend  to  satisfy  the  jury  —  for  whom  the  question  always  is  ^  — 
that  the  enjoyment  was  "  permissive,"  and  if  so,  it  can  never 
ripen  into  a  right,  however  long  continued.  For  instances  in 
which  this  permission  has  been  inferred  from  the  circum- 
stances, see  the  cases  cited  in  the  note.^ 

By  "  claim  of  right  "  is  not  meant,  however,  that  the  party 
using  the  easement  must  have  declared  he  used  it  as  of  right. ^ 
If  he  used  it  a  sufficient  time,  openly,  etc.,  without  saying 
anything,  a  jury  would  be  warranted  in  inferring  he  did  so 
under  a  claim  of  right,  and  that  the  same  was  adverse,  unless 
some  special  circumstances  existed  to  give  it  a  permissive 
character  ;  which  inference  would  be  strengthened  if  such  use 

1  Folio  222  h. 

2  See  Crounse  'v.  AYemple,  29  N.  Y.  542;  Smith  v.  Miller,  11  Gray,  145  ; 
Walkins  V.  Peck,  13  N.  H.  360  ;  Chestnut  Hill,  &c.  Co.  v.  Piper,  77  Penn. 
St.  433. 

8  See  Bradley  Fish  Co.  v.  Dudley,  37  Conn.  136. 

*  Putnam  v.  Bowker,  11  Cush.  542. 

^  Kilburn  v.  Adams,  7  Met.  33  ;  First  Parish  in  Gloucester  v.  Beach, 
2  Pick.  60,  note;  Gowen  v.  Philadelphia  Ex.  Co.  5  Watts  &  Serg.  141; 
First  Parish  in  Medford  v.  Pratt,  4  Pick.  222  ;  Harper  v.  Parish  of  the 
Advent,  7  Allen,  478;  Burnham  v.  McQuestein,  48  N.  H.  446;  Plympton 
V.  Converse,  44  Vt.  166  ;  Donnell  v.  Clark,  19  Me.  183;  Thomas  v.  Marsh- 
field,  13  Pick.  240;  Bachelder  i'.  Wakefield,  8  Cush.  243. 

8  Blake  v.  Everett,  1  Allen,  248. 


ACQUISITION   BY   PRESCRIPTION.  135 

was  really  injurious  or  inconvenient  to  the  landowner,  and  in- 
consistent with  his  own  absolute  property  in  the  estate ;  ^ 
and  in  such  cases,  probably,  the  presumption  is  that  the  use 
was  adverse  and  of  right,  and  not  by  permission.  The  enjoy- 
ment, therefore,  must  not  only  be  under  a  claim  of  right,  but 
it  must  be  one  which  the  owner  of  the  alleged  servient  tene- 
ment could  have  prevented,  or  interrupted  by  some  means, 
either  by  suit  at  law,  or  act  m  pais.  If  he  could  not  thus 
prevent  the  continued  use  made  of  his  premises,  it  would  be 
a  misuse  of  language  to  call  the  possession  or  enjoyment  "  ad- 
verse "  to  him. 2  Indeed,  it  is  absurd.  The  principle  that  a 
user,  or  practice,  which  is  neither  physically  preventible  by  the 
owner  of  the  alleged  servient  tenement,  nor  actionable  by 
him,  cannot,  however  long  continued,  furnish  the  foundation 
of  an  easement,  is  forcibly  illustrated  by  the  very  recent  case 
of  Sturges  v.  Bridgman,  in  the  English  Court  of  Appeal.^ 
There  a  confectioner  had  for  more  than  twenty  years  used 
large  mortars  in  his  building,  which  abutted  on  the  garden 
of  a  physician.  Subsequently  the  physician  built  a  consulting 
room  in  his  garden,  immediately  adjoining  the  confectioner's 
premises,  the  walls  being  in  contact ;  and  the  noise  and  vibra- 
tion from  the  continued  use  of  the  confectioner's  mortars 
caused  a  vibration  and  annoyance  to  the  physician,  and  he 
brought  an  action  for  injunction.  The  defendant  claimed  a 
right  by  long  use  to  continue  to  use  his  mortars  as  before  ; 
but  it  was  held  by  the  master  of  the  rolls,  and  by  the  Court 
of  Appeal,  that  no  such  right  could  be  thus  acquired,  either 
at  common  law  or  under  the  Prescription  Act. 

The  other  qualities  of  a  prescriptive  easement  are  not  less 
essential  than  that  just  mentioned,  but  they  are  fully  treated 

1  See  the  able  opinion  in  White  v.  Chapin,  12  Allen,  516;  Garrett  v. 
Jackson,  20  Penn.  St.  331;  Pierce  v.  Cloud,  42  lb.  102;  Hammond  v. 
Zehner,  21  N.  Y.  118. 

2  Parker  v.  Foote,  19  Wend.  309;  Sturges  v.  Bridgman,  11  Ch.  Div. 
852;  Pierre  v.  Fernald,  26  Me.  442;  Webb  v.  Bird,  10  C.  B.  N.  S.  268; 
Angus  V.  Dalton,  L.  R.  3  Q.  B.  Div.  85:  especially  the  able  opinion  of 
Cockburn,  C.  J.;  King  v.  Miller,  4  Halst.  Ch.  559;  Chasemore  v.  Rich- 
ards, 7  H.  L.  C.  349. 

8  11  Ch.  Div.  852  (1879). 


136  ACQUISITION   OF   EASEMENTS. 

hereafter  in  this  chapter,  both  at  common  law  and  under  the 
Prescription  Act.  In  America,  the  prevaihng  rule  is  that  if 
Conciu-  all  the  essential  elements  or  qualities  of  a  prescrip- 
siveiiessof  ^j^,g  right  exist,  the  presumption  of  a  grant  is  conclu- 
tive  \i\g\\t.  g{2)e,  and  the  prescriptive  right  cannot  be  overthrown 
by  proof  that  in  fact  no  grant  was  ever  made.  The  facts  them- 
selves constitute  a  legal  title,  as  perfect  and  conclusive  as  the 
production  of  an  actual  deed  or  grant  would  do.^  And  this 
is  so,  even  though  it  be  proved  or  admitted  that  the  user  com- 
menced by  an  actual  and  avowed  trespass,^  or  under  an  imper- 
fect and  unexecuted  grant  of  the  same  ;  ^  or  under  a  parol  gift.* 
The  above  is  the  common  law  on  the  subject  of  prescrip- 
tion, and  it  will  readily  be  seen  that  the  difficulty  of  establish- 
ing a  title  by  prescription  at  common  law  was  often  very 
great.  This  being  so,  a  new  method  of  claiming  easements 
b}^  means  of  an  imaginary  grant,  which,  after  twenty  years' 
undisputed  enjoyment,  was  presumed  to  have  been  made  and 
lost,  was  invented,  and  this  device,  which  has  alread}^  been 
explained,  was  substituted  for  the  old  method  of  claiming  by 
prescrij^tion. 

THE    PRESCRIPTION    ACT. 

With  a  view,  however,  of  removing  the  difficulties  in  the 
way  of  establishing  prescriptive  titles,  the  Prescription  Act"* 
was  passed  in  the  year  1832,  and  in  the  first  section  it  recites 
that,  "  whereas  the  expression  '  time  immemorial,  or  time 
whereof  the  memory  of  man  runneth  not  to  the  contrary,'  is 
now  by  the  law  of  England  in  many  cases  considered  to  in- 
clude and  denote  the  whole  period  of  time  from  the  reign  of 
King  Richard  the  First,  whereby  the  title  to  matters  that  have 
been  long  enjoyed  is  sometimes  defeated  by  showing  the  com- 

1  AYallace  v.  Fletcher,  30  N.  H.  434  ;  Tracy  v.  Atherton,  36  Vt.  503; 
Borden  v.  Vincent,  24  Pick.  303;  Hill  v.  Crosby,  2  Pick.  466;  Coolidge  v. 
Learned,  8  Pick.  504;  Gayetty  v.  Bethune,  14  Mass.  49  ;  Sargent  v.  Bal- 
lard. 9  Pick.  255. 

2  Sibley  v.  Ellis,  11  Gray,  417. 

«  Bolivar  Man.  Co.  v.  Neponset  Man.  Co.  16  Pick.  241. 

*  Legg  V.  Horn  45  Conn.  415. 

"  See  Appendix,  where  the  act  will  be  found. 


ACQUISITION   BY   PRESCRIPTION.  137 

mencement  of  such  enjoyment,  which  is  in  many  cases  pro- 
ductive of  inconvenience  and  injustice,  for  remedy  thereof  be 
it  enacted,"  &c.  The  enacting  part  of  the  first  section  of  this 
act  relates  exckisively  to  rights  of  common  and  other  profits  d 
preyidre,  -with  which  this  treatise  has  no  concern. 

By  the  second  section  it  is  enacted,  "  that  no  claim  which 
may  be  lawfully  made  at  the  common  law  by  cus-   Section 2. 
tom,  prescriiDtion,  or  grant  to  any  way  or  other  ease-   ,va^er.' 
ment,  or  to  any  watercourse,  or  the  use  of  any  water   courses, 

.  '^  ,  -'  and  other 

to  be  enjoyed  or  derived  upon,  over,  or  from  any  easements. 
land  or  water  of  our  said  lord  the  king,  his  heirs  or  succes- 
sors, or  being  parcel  of  the  duchy  of  Lancaster  or  of  the 
duchy  of  Cornwall,  or  being  the  property  of  any  ecclesiasti- 
cal or  la}^  person  or  body  corporate,  when  such  way  or  other 
matter  as  herein  last  before  mentioned  shall  have  been  actu- 
ally enjoyed  by  any  pei'son  claiming  right  thereto  without  in- 
terruption for  the  full  period  of  twenty  years,  shall  be  de- 
feated or  destroyed  by  showing  only  that  such  way  or  other 
matter  was  first  enjoyed  at  any  time  prior  to  such  period  of 
twenty  years  ;  but  nevertheless  such  claim  may  be  defeated 
in  any  other  way  by  which  the  same  is  now  liable  to  be  de- 
feated :  and  where  such  way  or  other  matter  as  herein  last 
before  mentioned  shall  have  been  so  enjoyed  as  aforesaid  for 
the  full  period  of  forty  years,  the  right  thereto  shall  be 
deemed  absolute  and  indefeasible  unless  it  shall  appear  that 
the  same  was  enjoyed  by  some  consent  or  agreement  expressly 
given  or  made  for  that  purpose  by  deed  or  writing." 

By  the  third  section  it  is  enacted,  "  that  when  the  access 
and  use  of  light  to  and  for  any  dwelling-house,  work-  gggfjQjj  3 
shop,  or  other  building  shall  have  been  actually  en-  Light. 
joyed  therewith  for  the  full  period  of  twenty  years  without 
interruption,  the  right  thereto  shall  be  deemed  absolute  and 
indefeasible,  any  local  usage  or  custom  to  the  contrary  not- 
withstanding, unless  it  shall  appear  that  the  same  was  en- 
joyed by  some  consent  or  agreement  expressly  made  or  given 
for  that  purpose  by  deed  or  writing." 

The  above-quoted  sections  are  the  only  two  which  prescribe 
the  length  of  user   requisite  for  acquisition  of   prescriptive 


138  ACQUISITION   OF  EASEMENTS. 

titles  to  easements  under  the  act.  There  are  other  sections 
Expiana-  which  will  be  noticed  hereafter,  which  relate  to  the 
tion  of  sec-    ,^-,q(}q  ^f  computing  the  periods  ;  but  before  notic- 

tions  2  and  i  o  r  ' 

3-  ing  these  it  is  desirable  to  ascertain  what  are  the 

easements  to  which  the  act  refers,  and  how  the  act  affects  pre- 
scription at  common  law. 

In  the  first  place  it  will  be  remarked  that  the  second  sec- 
tion relates  not  only  to  easements  which  may  be  ac- 
custom. .  -^  .     .       , 

quired  at  common  law  by  grant  and  prescription,  but 

also  to  those  which  may  be  acquired  by  custom.  Some  re- 
marks have  already  been  made  on  the  subject  of  customs, 
when  the  distinction  between  easements  and  customs  was 
pointed  out,  and  when  it  was  shown  that  though  customs  are 
not  easements,  easements  may  be  acquired  under  and  in  ac- 
cordance with  local  customs.  To  these  remarks  attention  is 
now  directed."^ 

The  first  class  of  easements,  of  which  mention  is  made  in 
,  ,,  the  second  section  of  the  act,  is  rights  of  way.  This 
can  only  refer  to  private  rights  of  way,  for  it  has 
already  been  shown  that  public  rights  of  way  are  not  ease- 
ments, and  the  law  of  prescription  does  not  apply  to  rights  of 
a  public  character. 

After  mentioning  ways,  the  same  section  next  speaks  of 

"  other  easements,"  and  this  phrase  has  given  rise 
"or  other  '  •  i  •    i        i  • 

ease-  to  much  debate.     A  case  in  which   the  meaning  of 

the  act  by  this  expression  was  considered  is  Webb 

V.  Bird,^  which   was   an   action  brought  by  the  owner  of  a 

windmill  against  a  neighboring  landowner,  who,  by  building, 

^^  .  obstructed  the  wind  from  flowing  to  the  mill.     A 

Uninter-  .  '^ 

ruptedflow  right  was  alleged  to  the  benefit  and  advantage  of  the 
streams  and  currents  of  air  and  wind  which  had  used 
to  pass,  run,  and  flow  to  tbe  mill  from  the  west.  It  was  held 
that  no  right  of  this  kind  could  be  acquired  under  the  act, 
even  if  it  could  have  been  gained  by  prescription  at  common 

=*  See  ante,  chapter  I.  p.  18. 

"  10  C.  B.  N.  S.  268;  30  L.  J.  C.  P.  384;  in  Exchequer  Chamber,  13 
C.  B.  N.  S.  841;  31  L.  J.  C.  P.  335;  Mounsey  v.  Ismay,  3  H.  &  C.  486  ; 
34  L.  J.  Exch.  52, 


ACQUISITION   BY   PRESCRIPTION.  139 

law.  It  was  observed,  in  the  course  of  the  argument,  by- 
Erie,  C.  J.,  that  the  easement  claimed  was  not  a  way  or  other 
easement  to  be  enjoyed  or  derived  "  upon,  over,  or  from  any 
land,"  and  that  all  the  easements  mentioned  in  the  second 
section  of  the  act  are  something  to  be  enjoyed  upon  the  sur- 
face of  the  land.  In  his  judgment  the  same  learned  judge 
explained  the  meaning  of  the  act  in  these  words  :  "  It  appears 
to  me  that  this  section  was  not  intended  to  give  a  right  after 
twenty  years  to  every  sort  of  enjoyment  which  may  be  classed 
under  the  general  term  easement,  but  that  it  was  meant  to 
apply  only  to  the  two  descriptions  of  easement  therein  speci- 
fied, i.  e.  the  right  to  a  way  or  watercourse  which  may  be 
enjoyed  or  derived  '  upon,  over,  or  from  'any  land  or  water.' 
I  do  not  think  the  passage  of  air  over  the  land  of  another  was 
or  could  have  been  contemplated  by  the  legislature  when 
framing  that  section.  They  evidently  intended  it  to  apply 
only  to  the  exercise  of  such  rights  upon  or  over  the  surface  of 
the  servient  tenement  as  might  be  interrupted  by  the  owner 
if  the  right  were  disputed.  It  is  clear  to  my  mind  that  that 
was  the  intention  of  the  legislature,  because  the  section  pro- 
vides that  the  claim  shall  not  be  defeated  where  there  has 
been  actual  enjoyment  for  the  period  mentioned  '  without  in- 
terruption.'^ I  am  at  a  loss  to  conceive  what  would  be  an  in- 
terruption of  such  a  right  as  is  here  claimed.  In  the  case 
of  a  way  the  exercise  or  enjoyment  of  the  right  may  be  in- 
terrupted by  the  erection  of  a  gate  or  other  impediment.  So 
of  the  analogous  right  to  water.  So  a  claim  to  lights  may 
be  obstructed  or  interrupted  by  the  erection  of  a  hoarding  or 
other  screen  by  the  owner  of  the  servient  tenement.  But  I 
am  utterly  unable  to  see  how  the  access  of  currents  of  wind 
and  air  to  a  mill,  which  is  necessarily  so  constructed  as  to  pre- 
sent its  face  to  whatever  quarter  the  wind  may  blow  from, 
could  possibly  be  interrupted.  Suppose  the  same  individual  to 
be  the  owner  of  all  the  land  round  the  mill  beyond  a  radius 
of  twenty  or  twenty-five  yards,  must  he,  in  order  to  prevent 

^  The  words  "  without  interruption "  mean  without  interruption  by 
some  reasonable  means.  Arkwright  v.  Gell,  5  M.  &  W.  203  ;  8  L.  J.  N.  S. 
Exch.  201. 


140  ACQUISITION   OF  EASEMENTS. 

the  acquisition  of  a  right  by  the  owner  of  a  mill,  build  a  wall 
all  round  it?  I  am  clearly  of  opinion  that  the  second  section 
of  the  statute  meant  to  include  only  such  easements  upon  or 
over  tlie  surface  of  the  servient  tenement  as  are  susceptible  of 
interruption  by  the  owner  of  such  servient  tenement,  so  as  to 
prevent  the  enjoyment  on  the  part  of  the  owner  of  the  dom- 
inant tenement  from  ripening  into  a  right."  Mr.  Justice 
Byles  said  :  "  I  entirely  agree  with  my  lord  that  the  words 
'  or  other  easement '  in  the  second  section  of  the  statute 
mean  any  other  easement  ejusdem  generis  with  a  way, — 
something  tliat  is  to  be  exercised  upon  or  over  the  soil  of  the 
adjoining  owner,  more  especially  as  it  is  clear,  from  the  next 
section,  that  they  exclude  the  easement  of  the  access  of  light." 

For  the  reasons  mentioned  in  these  judgments,  it  would 
seem  that  a  right  to  support,  among  others,  is  not  an 
*'  easement  "  within  the  meaning  of  the  second  sec- 
tion of  the  act,  and  probably  it  would  be  so  determined  now 
if  the  point  were  raised  ;  but  in  the  case  of  Partridge  v.  Scott,** 
the  court  appeared  to  be  of  opinion  that  a  right  to  support  is 
ordinarily  within  the  meaning  of  the  section,  though  the  right 
claimed  could  not  be  so  established  in  that  particular  case. 
But  it  has  recently  been  distinctly  held  that  a  right  to  support 
for  a  building,  although  in  one  sense  an  easement,  and  not  a 
natural  right  of  property,  is  not  an  "  easement  "  within  the 
Prescription  Act.^ 

Pollution  of  air  may  undoubtedly  be  resisted  by  reasonable 
Pollution  means — that  is,  by  bringing  an  action  for  damages 
°  ^"^'  or  for  an  injunction  ;   but  still  a  right  to  pollute  the 

air  is  not  at  all  analogous  to  a  right  of  way  or  a  right  to  a  wa- 
tercourse :  it  is  not  a  right  to  be  exercised  "  upon  or  over  the 
surface  of  the  servient  tenement,"  according  to  the  foregoing 
interpretation  of  the  statute  ;  and  therefore,  in  accordance 
with  the  judgments  in  Webb  v.  Bird  above  cited,  such  a  right 
is  not  an  "  easement "  within  the  meaning  of  the  act ;  but 
yet  it  seems,  on  several  occasions,  to  have  been  so  considered, 

°  3  M.  &  W.  220  ;  7  L.  J.  N.  S.  Exch.  101 ;  Hide  v.  Thornborough,  2 
Car.  &  K.  250. 
1  Angus  V.  Dalton,  4  Q.  B.  Div.  1C2. 


ACQUISITION   BY   PRESCRIPTION.  141 

for  in  Bliss  v.  Hall  ^  it  was  held  that  the  common  law  right  to 
purity  of  air  remained  until  an  adverse  right  to  pollute  it  had 
been  acquired  by  user  for  twenty  years  ;  and  in  Flight  v. 
Thomas/  in  which  a  right  to  pollute  air  was  claimed  under 
the  second  section  of  the  act,  it  was  said  that  to  establish  the 
right,  the  polluting  smells  must  be  shown  to  have  passed  to 
the  plaintiff's  land  for  twenty  years.  A  similar  decision  was 
given  by  Lord  Romilly,  M.  R.,  in  Crump  v.  Lambert,'*  in 
which  case  his  lordship  said  :  "  It  is  true  that  by  lapse  of 
time,  if  the  owner  of  the  adjoining  tenement,  which  in  case 
of  light  or  water  is  usually  called  the  servient  tenement,  has 
not  resisted  for  a  period  of  twenty  years,  then  the  owner  of 
the  dominant  tenement  has  acquired  the  right  of  discharging 
the  gases  or  fluid,  or  sending  smoke  or  noise  from  his  tene- 
ment over  the  tenement  of  his  neighbor." 

These  decisions  and  dicta  tend  to  create  uncertainty  as  to 
the  meaning  of  the  Prescription  Act,  but  in  no  case  has  the 
point  been  so  well  considered  as  in  Webb  v.  Bird  and  Moun- 
sey  V.  Ismay  ;  it  is  very  probable,  therefore,  that  if  the  ques- 
tion were  fairly  raised  and  argued,  it  would  be  held  that 
neither  a  right  to  support,  nor  a  right  to  pollute  air  or  create 
noise,  to  the  annoyance  of  a  neighbor,  is  an  easement  which 
can  be  acquired  under  the  second  section  of  the  Prescription 
Act. 

It  should  be  stated,  also,  that  an  easement  can  be  acquired 
under  the  second  section  of  the  Prescription  Act  only  if  it  is 

6  4  Bing.  N.  C.  183  ;  7  L.  J.  N.  S.  C.  P.  122.  • 

<:  10  A.  &  E.  590  ;  8  L.  J.  N.  S.  Q,  B.  337. 

'^  L.  R.  3  Eq.  409.  In  this  passage  the  master  of  the  rolls  speaks  of  the 
acquisition  of  a  right  to  make  a  noise,  to  the  nuisance  of  a  neighbor,  by 
twenty  years  user  of  the  practice.  It  seems,  however,  very  doubtful  if  any 
such  right  can  be  so  acquired.  In  Elliotson  v.  Feetham,  2  Bing.  N.  C.  134, 
which  was  an  action  for  nuisance  by  noise,  and  the  defence  was  that  the 
defendants  had  made  the  noise  for  ten  years  before  the  plaintiff'  came  to 
his  house,  the  court  intimated  an  opinion  that  such  a  right  might  be  ac- 
quired by  twenty  years  user.  In  Mumford  v.  Oxford,  Worcester  and  Wol- 
verhampton Railway  Co.  (1  H.  &  N.  34),  however,  which  was  also  an 
action  for  noise.  Pollock,  C.  B.,  said  :  "  There  is  a  distinction  between  a 
nuisance  and  an  easement.  No  right  can  be  gained  by  continuing  a  public 
nuisance."     And  see  Sturges  v.  Bridgman,  11  Ch.  Div.  852. 


142  ACQUISITION   OF   EASEMENTS. 

enjoyed  for  a  purpose  contemplated  by  that  section ;  thus, 
X-  ,      proof  of  user  to  turn  cattle  into  a  lane  cannot  es- 

Easement       ir 

claimed  to     tablisli   an    easement    under  the   second    section   of 

obtain  a  .-,,..  ,  /-i-i-  /»v 

profit  a  the  act,  it  obtaining  pasturage  (which  is  a  profit  a 
pitmie.      prendre)  was  the  object  of  the  user/ 

The  next  class  of  easements  mentioned  in  the  second  sec- 
Water-  tion  of  the  act,  is  watercourses.  It  may  be  remarked 
course.  ^.jj.^^^  ^j-^g  y^Q^-^  watercourse  is  commonly  used  to  des- 
ignate both  the  bed  or  channel  in  which  a  stream  flows,  and 
also  the  sti'eam  of  water  as  it  flows  in  the  channel ;  but  it 
seems  that  it  can  be  correctly  used  to  designate  the  former 
only,  and  speaking  of  the  stream  itself,  or  the  body  of  moving 
water,  as  a  watercourse,  tends  rather  to  confusion.  In  the 
Prescription  Act,  the  word  appears  to  relate  to  the  moving 
water  of  streams. 

In  Wright  v.  Williams'^  it  was  determined  that  the  word 
"  watercourse  "  in  the  act  includes  a  right  to  pour  water  over 
the  land  of  another  person,  and  that  case,  as  well  as  Carlyon 
V.  Lovering,^  shows  that  a  right  to  pollute  the  water  of  streams 
by  pouring  in  filthy  matter  or  rubbish,  is  also  a  right  to  a 
watercourse  within  the  meaning  of  the  act.  It  has  also  been 
decided  that  a  right  to  have  water  which  would  have  flowed 
down  to  particular  land  diverted  so  as  to  prevent  its  coming 
there  is  a  right  to  a  watercourse  under  the  act.'' 

The  use  of  water  is  the  only  remaining  easement  mentioned 
"  Use  of  ^^  t^®  second  section  of  the  act.  A  right  to  take 
water."  ^  water  has  already  been  shown  to  be  an  easement, 
and  not  a  jjrofit  a  prendre.^ 

It  will  be  observed  that  the  words  of  the  third  section  of 
the  Prescription  Act,  which  refer  to  rights  to  light 
only,  differ  materially  from  those  of  the  second  sec- 
tion.    It  will  be  shown  hereafter  that  the  effect  of  this  pecul- 

«  Bailey  v.  Appleyard,  8  A.  &  E.  161  ;  7  L.  J.  N.  S.  K.  B.  145. 
/  1  M.  &  W.  77  ;  5  L.  J.  N.  S.  Exoh.  107. 
»  1  II.  &  N.  784  ;  26  L.  J.  Exch.  251. 

''  Mason  v.  Shrewsbury  and  Hereford  Railway  Co.  L.  R.  6  Q.  B.  578  ; 
40  L.  J.  Q.  B.  293. 

'  See  ante,  chapter  I.  p.  7. 


ACQUISITION   BY   PRESCRIPTION.  143 

iar  form  of  words  is  to  place  the  acquisition  of  rights  to  light 
by  prescription  upon  a  totally  different  footing  from  the  ac- 
quisition of  other  easements  under  the  second  section,  but  as 
acquisition  of  rights  to  light  will  be  separately  considered 
hereafter,  this  matter  is  reserved  for  another  place/ 

There  is  one  point,  however,  in  which  the  words  of  the  third 
section  of  the  statute  are  the  same  as  those  of  the  Actual  en- 
second  ;  in  each  the  easement  is  required  to  have  3oy'nent. 
been  "  actually  "  enjoyed  for  the  full  period  named,  without 
interruption,  and  this  requisition  gave  rise  to  a  peculiar  con- 
tention in  the  case  of  Flight  v.  Thomas,*  which  was  carried 
to  the  House  of  Lords.  Light,  in  that  case,  had  been  enjoyed 
uninterruptedly  for  nineteen  years  and  a  part  of  the  twen- 
tieth year  :  before  the  twentieth  year  expired,  the  enjoyment 
was  interrupted,  and  the  interruption  was  continued  until 
the  expiration  of  the  twentieth  year,  when  an  action  was 
brought  by  the  claimant  of  the  right  against  the  obstructor, 
and  the  question  was  whether  an  easement  had  been  acquired. 
It  is  clear  that  when  the  obstruction  first  commenced,  no  ac- 
tion could  have  been  maintained,  for  there  had  not  been 
twenty  years'  enjoyment  of  the  light,  and  no  right  had  been 
acquired.  When  the  twenty  years  had  expired,  and  the  ac- 
tion was  brought,  it  was  urged  by  the  obstructor  that  no  right 
had  been  acquired,  for  that  the  light  had  not  been  "  actually  " 
enjoyed  for  the  full  period  of  twenty  years,  without  interrup- 
tion, as  required  by  the  act ;  but  it  was  replied  that  the  fourth 
section  of  the  act  states  that  "  no  act  or  other  matter  shall  be 
deemed  to  be  an  interruption  within  the  meaning  of  the  act 
unless  the  same  shall  have  been  submitted  to,  or  acquiesced 
in,  for  one  year,"  and  that,  as  the  action  had  been  commenced 
before  the  interruption  had  continued  for  one  year,  the  use  of 
the  light  must  be  taken  to  have  continued,  and  to  have  been 
actually  enjoyed,  notwithstanding  the  interruption  in  fact ; 
and  this  was  the  view  taken  by  the  court.  A  similar  case 
has  recently  arisen  in  which  the  principle  of  the  decision  in 

J  See  post,  section  2,  title  Light. 

^-  11  A.  &  E.  688;  10  L.  J.  Exch.  529 ;  in  H.  L.  8  CI.  &  F.  231 ;  West, 
671. 


144  ACQUISITION   OF   EASEMENTS. 

Flight  V.  Thomas  was  followed.  The  enjoyment,  however,  in 
that  case  had  not  even  continued  up  to  one  year  before  the 
coumiencement  of  the  action,  but  as  the  interruption  in  fact 
had  not  been  acquiesced  in,  the  prescriptive  period  was  held  to 
have  run.'  Though  this  may,  perhaps,  be  the  best  interpreta- 
tion of  these  somewhat  conflicting  clauses  of  the  statute,  a 
peculiar  result  follows,  —  namely,  that  for  all  practical  pur- 
poses an  easement  can  be  acquired  after  only  nineteen  years' 
enjoyment,  or  even  less,  notwithstanding  the  act  expressly  re- 
quires actual  enjoyment  for  t\\Qfull  period  of  twenty  j^ears. 

Except  in  the  case  of  rights  to  light,  the  Prescription  Act 
Effect  of  does  not  preclude  easements  being  claimed  and  ac- 
the  Pre-       quired  by  prescription  at  common  law  ;  "*  it  is  there- 

scription  ^  *''■  ^.  ••iiciii 

Act  on  pre-   fore  a  common  practice,  when  it  is  doubtful  whether 

scription  at     ,1  •  i  •  -ii  j_  1    •  i 

common  the  evidence  in  a  cause  will  support  a  claim  under 
''^^^*  the  act,  to  claim  an  easement  by  immemorial  enjoy- 

ment, as  well  as  under  the  act.  It  has  been  determined,  how- 
ever, that  in  the  case  of  a  right  to  light,  the  act,  owing  to  the 
peculiar  wording  of  the  third  section,  has  had  the  effect  of 
abolishing  the  common  law  title  by  prescription  and  establish- 
ing that  such  right  can  now  be  acquired  only  by  prescription, 
under  the  statute.  In  his  judgment  in  the  House  of  Lords  in 
the  case  of  Tapling  v.  Jones,"  the  Lord  Chancellor  (Lord 
Westbury)  said  that  the  right  to  what  is  called  an  "  ancient 
light  "  now  depends  upon  positive  enactment ;  that  it  is  matter 
juris  positivi,  and  does  not  require  and  therefore  ought  not  to 
be  vested  on  any  presumption  of  grant  or  fiction  of  a  license 
having  been  obtained  from  the  adjoining  proprietor.  His 
lordship  thought  that  it  would  be  found  that  error  in  some  de- 
cided cases  had  arisen  from  the  fact  of  the  courts  treating  the 
right  as  originating  in  a  presumed  grant  or  license.     It  will  be 

'  Glover  v.  Coleman,  L.  R.  10  C.  P.  108  ;  44  L.  J.  C.  P.  66.  Acquies- 
cence in  an  interruption,  and  what  is  sufficient  to  negative  the  idea  of  ac- 
quiescence will  be  considered  later  in  this  chapter. 

"*  Ilollbrd  V.  Hankinson,  5  Q.  B.  584;  13  L.  J.  Q.  B.  115.  Aynesley 
V.  Glover,  L.  11.  10  Ch.  App.  283;  44  L.  J.  Ch.  523.  In  this  decision,  which 
related  to  a  ri<rht  to  light,  the  lords  justices  made  no  distinction  between 
rights  to  light  and  other  easements  in  this  respect. 

"  11  H.  L.  C.  290;  34  L.  J.  C.  P.  342. 


ACQUISITION   BY   PRESCRIPTION.  146 

remarked  that  the  concluding  part  of  the  second  section  of  the 
act  is  similar  to  the  third  section,  and  enacts  that  when  ways, 
or  the  other  easements  mentioned  in  the  earlier  part  of  the 
section,  have  been  enjoyed  by  any  person  claiming  right 
thereto,  without  interruption,  for  the  full  period  of  forty 
years,  the  right  thereto  shall  be  deemed  absolute  and  inde- 
feasible. It  therefore  seems  to  follow,  for  the  reason  given  by 
Lord  Westbury,  that  the  effect  of  that  clause  is  to  render 
easements  of  way,  watercourse,  and  use  of  water,  which  have 
been  enjoyed  by  any  person  claiming  right  thereto,  for  the 
full  period  of  forty  years,  incapable  of  being  claimed  by  pre- 
scription at  common  law. 

A  point  which  naturally  suggests  itself  for  consideration  is, 
that  as  the  user  of  a  future  easement  in  the  land  of 
the  servient  owner  must  necessarily  be  an  illegal  act,    tioiof  pre- 
and  a  trespass  until  the  period  of  prescription  is  com-    Xhen  aT"^ 
pleted,  the  servient  owner  may  sue  for  the  series  of   easement  is 

■■  ....  acquired. 

trespasses,  although  a  prescriptive  title  has  been  ac- 
quired before  the  actions  are  commenced.  This,  however,  is 
not  so  in  the  case  of  easements  acquired  under  the  Prescrip- 
tion Act,  whatever  ma}'^  be  the  case  if  they  ai-e  acquired  by 
prescription  at  common  law  only.  This  point  was  raised  and 
decided  in  Wright  v.  Williams,"  in  which  case  it  was  deter- 
mined that  the  statute  intended  to  confer,  after  the  periods  of 
enjoyment  therein  mentioned,  a  right  from  their  first  com- 
mencement, and  to  legalize  every  act  done  in  the  exercise  of 
the  right  during  their  continuance. 

At  common  law  the  owner  of  land  in  fee  can  alone  claim 
an  easement  by  prescription  in  his  own  right,  —  all        . 
other  persons  must  prescribe  in  his  name,  and  show    prescrip- 
the  derivation  of  their  title  from  him,^  thus,  a  ten-    by  owners 
ant  for  years  must  prescribe  in  right  of  his  landlord,    o".c^i^pje"^ 

the  tenant  in  fee.^     The  Prescription  Act,  however,    o^  '"'J'l  \^- 
.         .  „       .     .  spectively. 

made  a  great  alteration  in  this  respect,  for  it  is  en- 

o  1  M.  &  W.  77;  5  L.  J.  N.  S.  Exch.  107. 

p  Holback  v.  Warner,  Cro.  Jac.  665  ;  Staples  v.  Heydon,  2  Ld.  Raym. 
922  ;  Smith  v.  Morris,  Fort.  340. 
3  Large  v.  Pitt,  Peaks  Ad.  Ca.  152;  Dawney  v.  CasMord,  Carth.  432. 
10 


146  ACQUISITION   OF   KASKMENTS. 

acted  in  tlie  fifth  section,  that  "  in  all  pleadings  to  actions  of 
trespass,  and  in  all  other  pleadings  wherein  before  the  passing 
of  this  act  it  would  have  been  necessary  to  allege  the  right  to 
have  existed  from  time  immemorial,  it  shall  be  sufficient  to 
allege  the  enjoyment  thereof  as  of  right  by  the  occupiers  of 
the  tenement  in  respect  whereof  the  same  is  claimed  for  and 
during  such  of  the  periods  mentioned  in  this  act  as  may  be 
applicable  to  the  case,  and  without  claiming  in  the  name  or 
right  of  the  owner  of  the  fee,  as  is  now  usually  done."  It 
will  be  observed  that  the  woi-ds  of  this  section  merely  refer  to 
the  mode  of  pleading  and  claiming  easements  ;  they  do  not 
enable  an  occupier  to  acquire  an  easement  for  himself  inde- 
pendently of  the  owner  in  fee,  so  that  an  easement  acquired 
under  the  act  shall  expire  with  the  occupier's  interest  in  the 
dominant  tenement.  The  easement  is  acquired  for  the  benefit 
of  the  dominant  tenement,  and  becomes  appurtenant  thereto 
into  whosoever  hands  it  passes  ;  and  the  grant  which  is  pre- 
sumed to  have  been  made  in  every  case  of  prescriptive  right 
is  presumed  to  have  been  made  to  the  owner  in  fee,  just  as  it 
is  in  cases  of  prescription  at  common  law,  and  not  merely  to 
the  occupier  in  whose  name  the  claim  is  made. 

The  Prescription  Act,  having  fixed  particular  periods  of 
Rules  for  time  during  which  easements  must  have  been  used 
pr^crip"^  in  order  that  a  prescriptive  title  may  be  acquired 
tive  pen-      under  the  act,  also  laid  down  certain  rules  for  com- 

ods  under  .  '       _ 

the  act.  puting  tliose  periods,  to  which  it  is  proposed  now  to 
direct  attention. 

By  the  fourth  section  of  the  act,  it  is  enacted  that  "each 
Section  4.  of  the  representative  periods  of  years  hereinbefore 
be"omV°  mentioned  shall  be  deemed  and  taken  to  be  the  pe- 
puted  from   ^Jq^j    next   before    some  suit  or  action  wherein  the 

some  suit 

or  action.^'  claim  or  matter  to  which  such  period  may  relate 
shall  have  been,  or  shall  be,  brought  into  question."  The  re- 
mainder of  the  section  explains  the  meaning  of  the  woi'd  "  in- 
terruption "  as  it  is  used  in  the  act,  but  that  will  be  more  fitly 
considered  in  another  part  of  this  chapter. 

In  this  section  it  will  be  observed  tliat  the  periods  of  user 
required  by  the  act  are  expressly  declared  to  be  the  periods 


ACQUISITION   BY   PRESCRIPTION.  147 

next  before  some  suit  or  action.     Some  difficulty  has  arisen 
from  this  enactment,  and  it  has  been  urged  that  it  could  not 
have  been  intended  that  tliis  expression  should  be  taken  lit- 
erally, but  that  it   must   have    meant    the    periods   Notfiom 
should  be  computed  from  before  the  time  of  some  act   the  com- 

'■  ,  mission  or 

committed   adversely  to    the    easement    claimed.     It   an  adverse 

act. 
was  determined,  however,  that  the  act  must  be  con- 
strued literally/  The  peculiar  effect  of  this  clause  in  the  act 
is,  therefore,  that,  however  long  an  easement  is  enjoyed  unin- 
terruptedly, no  prescriptive  title  can  be  acquired,  unless  an 
action  or  suit  is  commenced  by  the  servient  owner  for  tres- 
pass, by  using  the  easement,  or  by  the  dominant  owner,  for 
some  act  by  which  the  use  of  the  easement,  to  which  he  had 
at  the  time  really  no  legal  right,  was  obstructed.  The  posi- 
tion of  the  dominant  owner  before  the  action  is  brought  is  ex- 
plained by  Parke,  B.,  in  Ward  v.  Robins,*  thus  :  "  Such  en- 
joyment, in  order  to  give  a  right  under  that  statute,  must  be, 
up  to  the  time  of  the  commencement  of  the  suit,  not  up  to  the 
time  of  the  act  complained  of ;  amd,  consequently,  an  enjoy- 
ment for  twenty  years,  or  more,  before  that  act  gives  only 
what  may  be  termed  an  inchoate  title,  which  may  become 
complete  or  not  by  an  enjoyment  subsequent,  according  as 
that  enjoyment  is  or  is  not  continued  to  the  commencement 
of  the  suit.  This  apparent  absurdity,  arising  from  a  strict 
construction  of  the  act,  has  already  been  fully  considered  by 
this  court,  in  the  case  of  Wright  v.  Williams,  and  the  literal 
interpretation  adhered  to,  the  court  intimating  its  opinion  that 
the  mischief  of  such  a  construction  was  rather  apparent  than 
real,  and  the  decision  in  that  case  was  fully  approved  of,  and 
acted  upon,  by  the  Court  of  Queen's  Bench,  in  the  case  of 
Richards  v.  Fry." 

The  next  point  to  be  remarked  is,  that  the  periods  are  to 
be  next  before  some  suit  or  action,  and  a  question   ,^     . 

^  .         Meaning  of 

arose  in  construing  this  clause,  whether  the  act  in-   some,  suit 
tended  that  user  for  the  requisite  period  should  be 

»-  Wright  V.  Williams,  1  M.  &  W.  77;  5  L.  J.  N.  J.  Exch.  107  ;  Rich- 
ards V.  Fry,  7  A.  &  E.  698  ;   7  L.  J.  N.  S.  K.  B.  68. 
M5  M.  &  W.  237. 


148  ACQUISITION   OF   EASEMENTS. 

shown  to  have  immediately  preceded  each  suit  or  action  in 
whicli  the  right  was  brought  in  question,  or  whether  it  meant 
any  one  suit  or  action, —  that  is,  either  a  suit  or  action  then 
pending,  or  one  in  which  the  right  had  been  brought  in  ques- 
tion on  a  former  occasion.  The  point  was  argued  in  the  case 
of  Cooper  v.  Hubbuck,'  when  Williams,  J.,  differed  in  opinion 
from  the  rest  of  the  court,  he  thinking  that  in  every  action 
the  period  must  be  proved  to  have  been  next  before  that  par- 
ticular action,  but  the  other  judges  (Erie,  C.  J.,  Willes,  and 
Byles,  JJ.),  being  of  opinion  that  it  is  sufficient  if  the  period 
preceded  some  former  suit  or  action. 

Lastly,  it  is  to  be  observed  on  this  section  that  the  user  is 
User  must  required  to  be  next  before  a  suit  or  action  ;  and  with 
be  next  be-    reference  to  this,  it  has  been  determined  that  the 

fore  some  •  i        i 

suit  or  ac-  statute  intends  that  actual  user  must  be  shown  to 
have  continued  to  within  one  year  of  the  commence- 
ment of  a  suit  or  action.  In  the  case  of  Parker  v.  Mitchell," 
evidence  was  given  of  user  of  a  way  from  a  period  of  fifty 
years  till  within  four  or  fiv«  years  before  the  commencement 
of  the  action,  and  it  was  held  that  this  evidence  was  not  suflB- 
cient  to  establish  an  easement.  Lord  Denman  expressed  an 
opinion  that  absence  of  evidence  of  user  for  two  days  before 
the  commencement  of  the  action  would  not  prevent  the  acqui- 
sition of  an  easement,  because  that  period  is  less  than  a  year. 
The  case  was  only  argued  on  motion  for  a  rule,  which  was  re- 
fused, and  no  formal  judgment  was  given.  In  Lowe  v.  Car- 
penter," the  user  was  proved  to  within  fourteen  months  of  the 
action ;  and  on  the  authority  of  Parker  v.  Mitchell  it  was  de- 
cided that  the  evidence  was  insufficient.  It  was  said  by  Pat- 
teson,  J.,  at  nisi  prius,  that  the  decision  in  Parker  v.  Mitchell 
was  not  satisfactory  to  his  mind  ;  but  Parke,  B.,  with  the 
concurrence  of  the  other  judges,  said  that  he  was  by  no  means 
satisfied  Parker  v.  Mitchell  was  wrong,  and  that  case  was  fol- 
lowed by  the  court.     Parke,  B.,  further  said  that,  in  his  opin- 

'  12  C.  B.  N.  S.  456  ;  31  L.  J.  C.  P.  323. 
«  11  A.  &  E.  788  ;  9  L.  J.  N.  S.  Q.  B.  194. 

«  6  Exch.  825;  20  L.  J.  Exch.  374.  But  see  Glover  v.  Coleman,  L.  R. 
10  C.  P.  108;  44  L.J.  C.  P.  66, 


ACQUISITION   BY   PRESCRIPTION.  149 

ion,  tlie  true  construction  of  the  statute  is  that  there  should 
be  some  act  of  user  within  each  year  of  the  prescriptive  pe- 
riod, and  he  asked,  during  the  argument,  "  Was  the  Statute  2 
&  3  Wra.  IV.  c.  71,  intended  to  apply  to  cases  where  the 
rights  mentioned  in  it  are  only  used  once  in  two  years  ?  Must 
there  not  be  at  least  an  annual  user  ?  How  could  a  party  ac- 
quiesce for  one  year  under  the  fourth  section  if  the  '  act  or 
matter  '  is  done  only  once  in  two  years  ?  "  He  then  observed 
that  the  form  of  plea  under  the  act  seemed  not  to  apply  to 
cases  where  the  enjoyment  is  not  annual.  This  opinion  of 
Parke,  B.,  would  possibly  not  be  supported  if  the  point  were 
fully  argued  and  decided  in  a  judgment."' 

It  will  be  understood  that  these  rules  for  computation  of 
prescriptive  periods  apply  only  to  cases  of  easements   no  such 
claimed    under  the  act ;    to    establish    an    easement   cominon 
claimed  by  prescription  at  common  law  it  is  not  es-   ^^w. 
sential  to  produce  evidence  of  user  within  the  last  year  before 
action.^ 

The  sixth  section  of  the  Prescription  Act  enacts  that  "  in 
the  several  cases  mentioned  in,  and  provided  for,  by   gection  6. 
this  act,  no  presumption  shall  be  allowed  or  made  in    Nopre- 

^  r  r  ^  sumption 

favor  or  support  of  any  claim  upon,  proof  of  the  ex-    of  user  to 
ercise  or  enjoyment  of  the  right  or  matter  claimed 
for  any  less  period  of  time  or  number  of  years  than  for  such 
period  or  number  mentioned  in  this  act,  as  may  be  applicable 
to  the  case  and  to  the  nature  of  the  claim." 

There  are  several  cases  which  have  arisen  involving  ques- 
tions relating  to  the  meaning  of  this  clause.  The  first  to 
which  attention  is  directed  is  Carr  v.  Foster,^  which  was  an 
action  for  disturbance  of  a  right  of  common.     To  rights  of 

«'  See  Ladyman  v.  Grave,  L.  R.  6  Ch.  App,  at  p.  768,  and  Carr  v.  Foster, 
3  Q.  B.  581 ;  11  L.  J.  Q.  B.  284.  These  cases  indicate  that  user  is  sufficient 
for  the  acquisition  of  a  prescriptive  right,  even  though  there  were  a  period 
of  non-user  in  the  middle,  provided  the  nqn-user  was  not  in  consequence 
of  the  adverse  act  of  the  servient  owner,  so  as  to  constitute  an  interrup- 
tion. There  are,  however,  autliorities  to  show  that  the  user  must  be  con- 
tinuous.    See  j)ost. 

^  Darling  v.  Clue,  4  F.  &  F.  329. 

2/  3  Q.  B.  581 ;  14  L.  J.  Q.  B.  284. 


150  ACQUISITION   OF  EASEMENTS. 

this  kind,  acquired  under  the  first  section,  the  sixth  section  of 
the  act  ap])lies  equally  with  easements  acquired  under  the  sec- 
ond and  third  sections,  and  the  case  is,  therefore,  an  author- 
ity on  the  law  relating  to  easements.  The  enjoyment  of  the 
right  was  proved  to  have  continued  for  nearly  forty  years  be- 
fore the  commencement  of  the  action  —  the  act  in  the  case  of 
commons  requiring  enjoyment  for  thirty  3'ears.  It  appeared, 
however,  that  about  eighteen  years  before  the  action  the 
owner  of  the  dominant  tenement,  having  no  cattle,  made  no 
use  of  the  right  for  a  period  of  two  years.  It  was  urged,  in 
opposition  to  the  claim,  that  the  act  required  actual  enjoy- 
ment during  the  whole  f>eriod,  which  was  not  proved,  and 
that  by  reason  of  the  sixth  section,  no  presumption  of  enjoy- 
ment during  the  two  years  could  be  made  ;  but  it  was  held 
that  the  evidence  was  sufficient  to  support  the  right,  Lord 
Denman,  C.  J.,  in  his  judgment,  saying  that:  "  Section  six 
enacts  that  no  presumption  shall  be  made  in  favor  of  any 
claim,  on  proof  of  the  right  having  been  exercised  for  a  less 
period  than  that  prescribed  by  the  act  in  the  particular  case. 
But  that  provision  is  meant  only  to  encounter  presumptions 
from  an  exercise  of  the  right  during  such  an  imperfect  period 
that  it  was  exercised  in  olden  times.  The  effect  of  the  clause 
is  that  a  claimant  proving  enjoyment  for  less  than  the  speci- 
fied time  shall  not,  on  that  ground,  carry  back  his  right  to  a 
period  before  that  which  his  proof  extends  to.  But  this  does 
not  affect  the  mode  of  proof,  and  where  actual  enjoyment  is 
shown  before  and  after  the  period  of  intermission,  it  may  be 
inferred  from  that  evidence  that  the  right  continued  during 
the  whole  time."  From  the  case  of  Lawson  v.  Langley,^  it 
may  be  inferred  that  the  sixth  section  of  the  act  would  not 
preclude  a  jury  from  presuming  user  at  the  commencement  of 
the  prescriptive  period,  if  evidence  were  given  of  user  a  little 
before  and  again  after  the  prescriptive  period  had  begun  to 
run. 

The  sixth  section  of  the  act,  forbidding  presumptions  in 
favor  of  a  claim  to  an  easement,  relates,  of  course,  exclusively 
to  the  cases  of  easements  claimed  under  the  act.     In  Bright 
^  4  A.  &  E.  8D0;  6  L.  J.  N.  S.  K.  B.  271. 


ACQUISITION   BY  PRESCRIPTION.  151 

V.  Walker,"  Parke,  B.,   in   delivering  the  judgment    of   the 
court,  said  :   "  Of  course  nothing  that  has  been  said    Presump- 
by  the  court,  and  certainly  nothing  in  the  statute,    prohibited 
will  prevent  the  operation  of  an  actual  grant  by  one    ^en^  of'" 
lessee  to  the  other,  proved  by  the  deed  itself,  or   ^"  '^^'^"^^ 

^  •'  _  grant  ex- 

upon  proof  of  its  loss,  by  secondary  evidence  ;  nor   ists. 
prevent  the  jury  from  taking  the  possession  into  consideration 
with  other  circumstances,  as  evidence  of  a  grant,  which  they 
may  still  find  to  have  been  made,  if  they  are  satisfied  that  it 
was  yyiade  in  point  of  fact^ 

A  dictum  of  Lord  Westbury's,  relating  o  this  section  of 
the  act,  should  be  noticed  before  leaving  the  subject.  His 
lordship  is  reported  to  have  said  that  the  meaning  of  the  sec- 
tion seemed  to  be  that  no  presumption  or  inference  in  support 
of  a  claim  should  be  derived  from  the  bare  fact  of  user  or  en- 
joyment for  less  than  the  prescribed  number  of  years  ;  but 
that  when  there  are  other  circumstances  in  addition,  the  stat- 
ute does  not  take  away  from  the  fact  of  enjoyment  for  a 
shorter  period  its  natural  weight  as  evidence,  so  as  to  preclude 
a  jury  from  taking  it,  along  with  other  circumstances,  into 
consideration  as  evidence  of  a  grant.*  From  the  concluding 
words  of  this  paragraph,  it  would  seem  that  Lord  Westbury 
intended  to  express  the  same  idea  as  that  of  Parke,  B.,  in 
Bright  V.  Walker,  in  the  passage  above  quoted,  i.  e.  that  if 
an  easement  is  claimed  under  the  Prescription  Act  simply,  no 
presumption  of  a  grant,  which  every  one  knows  never  existed, 
may  be  made  unless  evidence  is  given  of  user  for  the  full 
period  required  by  the  act ;  but  that  if  circumstances  exist 
from  which,  coupled  with  a  certain  amount  of  user,  it  may  be 
reasonably  presumed  that  a  grant  actually  was  made,  the  act 
does  not  forbid  a  presumption  of  such  a  grant  having  been 
made  merely  because  the  user  by  itself  would  have  been  in- 
sufficient to  satisfy  the  statute.  In  a  case  of  this  kind  the 
title  to  the  easement  is  not  prescriptive  at  all,  but  depends 
upon  an  actual  grant. 

By  the  seventh  section  of  the   Prescription  Act,  it  is  pro- 

«  1  C,  M,  &  R.  at  p.  222, 

*•  Hanmer  r.  Chance,  34  L.  J.  Ch.  at  p.  416. 


152  ACQUISITION    OF   EASEMENTS. 

videtl  that  "  tlie  time  during  which  any  person  otherwise 
o     •     -r      capable  of  resisting  any  chiim  to  any  of  the    mat- 

Section  7.1  . 

Disability     tt?rs  before   mentioned  shall  have  been  or  shall  be 

of  persons  .     „  .  , .  j  •        i- 

intertsio.i  an  infant,  idiot,  non  compos  mentis,  leme  covert,  or 
presc'iTp-""  tenant  for  life,  or  during  which  any  action  or  suit 
tive  user,  shall  have  been  pending,  and  which  shall  have  been 
diligently  prosecuted  until  abated  by  the  death  of  any  party 
or  parties  thereto,  shall  be  excluded  in  the  computation  of  the 
periods  hereinbefore  mentioned,  except  only  in  cases  where 
the  right  or  claim  is  hereby  declared  to  be  absolute  and  inde- 
feasible." 

By  the  eighth  section  it  is  enacted  that  "  when  any  land  or 
Section  8.  water,  upon,  over,  or  from  which  any  such  way  or 
in"- terms  other  convenient  watercourse,  or  use  of  water,  shall 
veanTir  have  been,  or  shall  be,  enjoyed  or  derived,  hath  been 
the  servi-      qj.  shall  be   held,  under  or  by  virtue  of  any  term  of 

ent  tene-  .  t  i  <• 

ment.  life,  or  any  term  of  years  exceeding  three  years  from 

the  granting  thereof,  the  time  of  the  enjoyment  of  such  way, 
or  other  matter  as  herein  last  before  mentioned,  during  the 
continuance  of  such  term,  shall  be  excluded  in  the  computa- 
tion of  the  said  period  of  forty  years,  in  case  the  claim  shall, 
within  three  years  next  after  the  end  or  sooner  determination 
of  such  term,  be  resisted  by  any  person  entitled  to  any  rever- 
sion expectant  on  the  determination  thereof." 

The  seventh  and  eighth  sections  of  the  act  have  a  some- 
what similar  object  —  namely,  the  prevention  of  easements  be- 
ing acquired  under  the  act  against  interested  persons  who  are 
physically  or  legally  incapable  of  resistance.  It  will  be  ob- 
"  Other  served  that  the  eighth  section  contains  the  peculiar 
water-'^'*^  phrase,  "  Any  such  way,  or  other  convenient  ivater- 
course."  comse,  or  use  of  water."  This  is  evidently  a  mis- 
take, and  various  surmises  have  been  made  as  to  the  intention 
of  the  legislature  by  the  enactment  in  question  ;  but  if  the 
words  of  the  section  be  compared  with  those  of  the  second 
section,  it  may  readily  be  conceived  that  the  intention  was  to 
use  the  same  words  in  each,  and  that  the  sentence  should  be 
read  —  any  such  way  or  other  easement,  or  to  any  watercourse 
or  use  of  water. 


ACQUISITION   BY   PRESCRIPTION.  153 

The  seventh  section  of  the  act,  at  first  sight,  appears  to  be 
at  variance  with  the  fourth  ;  in  the  hitter  the  period  interven- 
is  required  to  be  next  before  some  suit  or  action,  but  estate; 
if  a  disability  intervenes,  and  tlie  time  during  its  t[|,"7of*" 
continuance  is  to  be  exchided  in  computing  the  pe-  period. 
riod,  it  may  happen  that  a  small  portion  of  the  prescriptive 
period  only  can  be  proved  to  have  been  next  before  the 
action.  This  point  arose  in  the  case  of  Clayton  v.  Corby," 
which  was  an  action  for  trespass,  in  answer  to  which  a  pre- 
scriptive right  to  dig  clay  was  set  up,  claimed  under  the  first 
section  of  the  act ;  the  replication  alleged  the  intervention  of 
of  a  life  estate  in  the  servient  tenement,  and  the  question  was 
whether  evidence  of  user  for  twenty-five  years  before  the 
creation  of  the  life  estate,  during  the  life  estate,  and  for  six 
years  after  the  life  estate  continuously  down  to  the  commence- 
ment of  the  action,  was  sufficient  to  establish  the  right.  It 
was  held  that  it  was,  for  that  the  fourth  and  the  seventh  sec- 
tion ought  to  be  read  together,  and  that  the  period  is  required 
to  be  thirty  years  next  before  action,  excluding,  in  the  com- 
putation of  those  thirty  years,  any  tenancy  for  life,  and  that 
the  setting  up  of  a  life  tenancy  obliges  a  claimant  to  show 
thirty  years'  enjoyment,  either  wholly  before  the  tenancy  for 
life,  if  it  be  still  subsisting  at  the  commencement  of  the  suit, 
or  partly  before  and  partly  after,  if  it  be  ended. 

It  will  be  shown  hereafter  that  the  user,  to  satisfy  the  stat- 
ute,   must    be    continuous ;    and   it    may    be    urged    continuity 
against  the  continuity  of  the  enioyment,   that  if  a    "^  penod. 
°  „      ,.,  ^  ■  \     f  r     viv    •        Exclusion 

tenancy  tor  lite,  or  years,  or  a  period  ot  disability  in-    of  period  of 

tervenes,  the  time  during  the  continuance  of  which  ""*  ' '  ^' 
is  excluded  in  the  computation,  the  enjoyment  ceases  to  be 
continuous  ;  but  this  is  not  so,  for  the  effect  of  the  seventh 
aiid  eighth  sections  is  not  to  unite  discontinuous  periods  of 
enjoyment,  but  to  extend  the  period  of  continuous  enjoyment 
by  so  long  a  time  as  the  tenancy  or  disability  continues.*^ 
Some  little  doubt  arose,  in  consequence  of  the  decision  in 

<^  2  Q.  B.  813;  11  L.J.  Q.  B.  239. 

'i  Onley  v.  Gardiner,  4  M.  &  W.  496;  8  L.  J.  N.  S.  Exch.  102. 


154  ACQUISITION   OF   EASEMENTS. 

Bright  V.  Walker,*  whether  terms  for  life  and  for  3'ears  ought 
Exclusion  not  to  be  excluded  under  the  eighth  section  of  the 
for  life  and  act  in  the  computation  of  periods  of  twenty  as  well 
aer7e'ct'ion  ^^  ^^  forty  years,  although  the  period  of  forty  years 
8, when         jg  ^lone  mentioned  in  that  section  of  the  act.     The 

computing  ^  ,  ,  ...,., 

periods  of  passage  which  gave  rise  to  this  doubt  is  in  the  judg- 
yeafs.  meut    of    Parke,  B.     After  quoting  the   section  he 

said  :  "  It  is  quite  certain  that  an  enjoyment  of  forty  years 
instead  of  twenty,  under  the  circumstances  of  this  case,  would 
have  given  no  title  against  the  bishop,  as  he  might  dispute 
the  right  at  any  time  within  three  years  after  the  expiration 
of  the  lease  ;  and  if  the  lease  for  life  be  excluded  from  the 
longer  period  as  against  the  bishop,  it  certainly  must  from  the 
shorter."  The  point  was  fully  argued,  however,  in  the  sub- 
sequent case  of  Palk  v.  Skinner,-''  when  it  was  determined  that 
the  express  mention  of  forty  years  excludes  the  twenty  years' 
enjoyment,  and  shows  that  the  section  is  only  applicable  to 
the  period  of  forty  years.  Of  the  case  of  Bright  v.  Walker  it 
was  said  by  Lord  Campbell,  C.  J.,  that  when  properly  ex- 
amined it  appears  that  the  Court  of  Exchequer  was  not  re- 
quired to  give  any  opinion  upon  the  effect  of  the  eighth  sec- 
tion, and  that  it  was  quite  clear  in  that  case  that  the  right 
set  up  was  negatived  under  the  seventh  section,  and  that  that 
was  the  ratio  decidendi  upon  which  the  court  proceeded. 

CHARACTER    OF    THE    USER. 

The  above  are  the  special  rules  enacted  by  the  Prescription 
The  char-  Act  as  to  the  duration  of  user  required  for  the  acqui- 
user,  the  sitioii  of  easements  under  the  act  and  the  mode  of 
common  Computing  the  periods  there  mentioned  ;  but  it  must 
law  and        always  be  borne  in  mind  that  the  purpose  of  the  act 

under  the  "^  .  . 

statute.  was  merely  to  shorten  the  periods  of  enjoyment  re- 
quired for  the  acquisition  of  easements  in  certain  cases  ;  it 
was  not  the  intention  of  the  act  to  alter  the  character  of 
prescriptive  user,  and  the  same  characteristics  are  required 

«  1  C,  M.  &  R.  211;  3  L.  J.  N.  S.  Exch.  2501 
f  18  Q.  B.  568;  22  L.  J.  Q.  B.  27. 


ACQUISITION   BY   PRESCRIPTION.  155 

for  tlie  user  that  an  easement  may  be  acquired  under  the  act 
as  for  the  user  after  which  an  easement  can  be  acquired  by- 
prescription  at  common  law.  The  act,  moreover,  expressly 
declares  in  the  second  section  that  all  claims  to  easements 
made  thereunder  may  be  defeated  in  any  way  (except  by 
showing  that  the  easement  was  first  enjoyed  at  some  time 
prior  to  the  periods  therein  mentioned)  by  which  the  same 
would  have  been  liable  to  be  defeated  at  common  law.  It 
therefore  becomes  essential  to  inquire  what  are  the  requisite 
characteristics  for  the  user  that  an  easement  may  be  acquired 
by  prescription  at  common  law,  and  to  ascertain  by  what 
means  prescriptive  title  may  be  defeated  otherwise  than  by 
showing  the  commencement  of  the  user. 

No  easement  can  be  acquired  by  prescription  if  it  would  be 
inconsistent  with  an  actual  and  existing  grant  made   -^^  \y 

by  the  same  person  from  whom  a  grant  would  have   scriptionat 

*'  ^  .      ,  .    ,  variance 

to  be  presumed  to  support  the  prescriptive  right,  with  a 
This  proposition  scarcely  needs  demonstration,  for  it 
is  plain  that  if  a  man  grants  a  right  he  cannot  nullify  that 
grant  by  another  which  is  adverse  to  it,  and  therefore  no  such 
adverse  grant  can  be  presumed.  A  case,  however,  came  be- 
fore the  Privy  Council  on  appeal  from  the  Isle  of  Man  which 
seems  to  be  somewhat  at  variance  with  this  principle,  and  it 
is,  therefore,  deserving  of  notice.  It  appeared  that  in  1761 
the  respondent's  predecessors  in  title  bought  of  the  appellant's 
predecessors  some  land  on  which  they  were  to  erect  "  a  mill 
or  otherwise  an  instrument  wherewith  to  plate  iron,  and  like- 
wise a  smithy,"  and  the  appellant's  predecessors  in  title  who 
retained  the  adjoining  land,  engaged  to  keep  the  water  of  a 
watercourse  in  the  retained  land  "  continuing  to  the  dam  that 
was  then  intended  to  be  made  at  the  n  ]  er  end  of  the  land 
for  the  use  of  the  plating  mill,"  so  that  it  was  contended  that 
the  intention  was  only  to  supply  the  water  for  the  purpose 
of  the  mill  while  used  as  a  plating  mill  and  the  smithy.  In 
process  of  time  the  mill  was  changed  and  the  water  was  used 
for  various  and  varying  purposes,  and  at  length  for  forty  years 
and  down  to  1838  for  a  brewery.  From  that  date  till  1849, 
when  the  bank  confining  the  water  in  its  course  broke  down, 


156  ACQUISITION    OF   EASEMENTS. 

no  use  was  made  of  the  stream,  though  it  still  flowed  to  the 
old  spot.  On  the  bank  breaking  down  the  respondent  entered 
the  appellant's  land  and  repaired  it,  when  the  appellant,  oppos- 
ing the  respondent's  claim  of  right,  broke  down  the  repaired 
bank  again.  The  deed  of  1761  was  produced  to  show  that 
the  riglit  was  limited  by  the  grant  to  user  for  a  plating  mill 
and  smith}^  only.  The  Privy  Council,  however,  thought  that, 
whatever  might  have  been  originalh'  intended,  the  user  that 
had  taken  place  for  such  a  great  length  of  time  in  applying 
the  water  was  sufficient,  under  the  law  of  the  Isle  of  Man,  to 
give  the  respondent  a  prescriptive  right ;  and  it  was  said  that 
it  must  be  admitted  that  there  had  been  plenty  of  opportunity 
for  the  appellant  to  interfere  and  restrict  the  right,  if  any 
such  right  of  restriction  existed.  It  was  quite  clear  that  if  the 
grantor  had  restricted  the  right  of  the  use  of  the  water  to  a 
particular  purpose  only,  and  the  grantee  had  used  it  for  other 
purposes  than  those  mentioned  in  the  grant,  and  the  grantor 
had  stopped  the  water  from  flowing  there  at  all,  he  would 
have  been  justified ;  but  as  he  chose  to  lie  by  for  fifty  years  it 
was  then  too  late  for  him  to  say  that  the  right  had  not  been 
acquired.^  It  may  be  said  to  this  decision  that  the  right 
claimed  to  have  been  acquired  by  prescription  was  not  adverse 
to,  but  rather  an  enlargement  upon,  the  right  oi'iginally 
granted  by  the  deed,  and  therefore  that  it  was  not  adverse  to 
the  grant,  and  this  apparently  is  so,  the  right  granted  being  to 
use  the  water  for  a  plating  mill,  and  the  right  claimed  being 
to  use  it  for  all  purposes,  but  it  is  clear  from  the  judgment 
that  the  Privy  Council  did  not  decide  the  case  upon  that 
ground,  but  simply  upon  the  ground  that  as  the  grantor  did 
not  choose  to  keep  the  user  within  the  limits  of  the  grant, 
the  grant  would  not  by  itself  prevent  an  enlarged  or  an  ad- 
verse right  being  acquired  by  prescription. 

As  no  easement  can  be  acquired  by  prescription  if  it  would 
No  pre-  be  inconsistent  with  an  actual  and  existing  grant 
variance^  made  by  the  presumed  grantor  of  the  prescriptive 
scripUve*^^'  ^^S^^^'  ^^  neither  can  an  easement  be  acquired  by  pre- 
Fight.  scription  if  it  would  be  at  variance  with  another  and 

a  Tobin  v.  S  to  well,  9  Moore  P.  C.  71. 


ACQUISITION   BY   PRESCRIPTION.  157 

an  existing  prescriptive  right.  The  reason  for  this  is  similar 
to  the  reason  for  the  former  proposition.  To  support  a  pre- 
scriptive right  a  grant  must  be  presumed,  but  as  a  man  can- 
not make  a  grant  in  derogation  of  another  grant  ah'eady  made 
by  him,  so  a  gTant  cannot  be  presumed  in  derogation  of  an- 
other presumed  grant.  A  different  reason  was  given  in  Al- 
dred's  case  for  this,  but  hovrever  good  that  may  have  been,  the 
other  is  sufficient.  In  Aldred's  case,''  the  Court  of  King's 
Bench  determined  that  "when  a  man  has  a  lawful  easement  or 
profit  by  prescription  from  time  whereof,  &c.,  another  custom 
which  is  also  from  time  whereof,  &c.,  can't  take  it  away,  for 
the  one  custom  is  as  ancient  as  the  other :  as  if  one  has  a  way 
over  the  land  of  A.  to  his  freehold  by  prescription  from  time 
whereof,  &c.,  A.  can't  allege  a  prescription  or  custom  to  stop 
the  said  way."  It  has,  however,  been  shown  that  an  easement 
of  an  inconsistent  character  may  be  acquired  subordinate  to 
an  easement  already  existing. 

An  easement  at  variance  with  a  natural  right  can   be  ac- 
quired by  prescription,  and  in  this  particular  consists    Prescrip- 
one    of  the    points    of  distinction    between    natural   beatvan- 
rights  and  easements :  but  in  order  that  an  easement    ance  with 

°         .  .  ,  a  natural 

at  variance  with  the  natural  rights  of  another  per-  rigiit. 
son  may  be  acquired  by  prescription,  the  user  by  which  it 
is  acquired  mast  have  affected  the  use  the  other  has  made  of 
his  natural  riglits,  or  his  power  to  use  them  ;  for  in  the  ab- 
sence of  this  no  presumption  of  a  grant  of  the  right  can  be 
implied,  which  it  will  presently  be  shown  is  essential  for  the 
acquisition  of  an  easement  by  prescription.* 

Whether  an  easement  is  capable  of  being  acquired  by  pre- 
scription depends  in  every  case,  except  in  the  case  of    p^.^^  ^.j 
claims   to  rights  to  light,   whether   a  grant   of  the    t'O"  possi-      i 

.         .  ...  .       ble  only         4- 

right  in  question  is  capable  of  being  implied  ;  for  it   when  a 
must  always  be  remembered  that  title  by  prescrip-   brpre-^"^ 
tion  is  founded   upon   the  presumption   of  a  grant   ®"'"^^- 
having  been  originally  made  by  the  owner  of  the  servient  to 

''  9  Coke's  Rep.  58;   Spooner  v.  Day,  Cro.  Car.  432;  Murgatroid  v.  Law, 
Carth.  116;  WynstaiiK-y  v.  Lee,  2  Sw.  333, 
»  Sampson  v.  Hoddinott,  1  C.  B.  N.  S.  at  p.  611;  26  L.  J.  C.  P.  148. 


158  ACQUISITION   OF   EASEMENTS. 

the  owner  of  the  dominant  estate  :  if,  therefore,  it  is  shown 
that  at  the  time  when  such  a  grant  must  be  presumed  to  have 
been  made,  in  order  that  the  claim  may  be  supported,  the 
grant  from  any  cause  could  not  have  been  made,  no  presump- 
tion of  the  kind  can  arise,  and  the  claim  will  be  defeated. 
There  are  a  variety  of  ways  by  which  this  presumption  can 
be  rebutted,  and  these  will  now  be  considered  in  succession. 
It  has  ah-eadj^  been  observed  that  the  Prescription  Act,  owing 
to  the  peculiar  form  of  the  third  section,  introduced  an  excep- 
tion to  tlie  general  rule  in  cases  of  rights  to  light  claimed  by 
prescription,  and  that  that  section  had  the  effect  of  abolishing 
claims  to  light  by  prescription  at  common  law  ;  in  addition  to 
this  it  had  the  effect  of  removing  the  necessity  for  presuming 
a  grant  to  support  claims  to  rights  to  light  by  prescription 
under  the  act,  for  in  Tapling  v.  .Jones,-^  in  the  House  of  Lords, 
it  was  determined  that  the  right  to  light  since  the  statute 
"depends  upon  positive  enactment.  It  is  xwvittQV  juris posi- 
tivi,  and  does  not  require  and  therefore  ought  not  to  be  vested 
on  any  presumption  of  grant  or  fiction  of  a  license  having 
been  obtained  from  the  adjoining  proprietor." 

No  presumption  of  a  grant  of  an  easement  claimed  by  pre- 
Easement  scription  can  be  made  if  the  easement  is  of  such  a 
must  have     nature  that  it  was  incapable  of  being  the  subiect  of 

been  capa-  i       p  i  c      i 

bieofbeing  a  grant ;  but  the  fact  that  a  grant  or  the  easement 
granet.  ^yQ^[J  have  entirely  deprived  the  owner  of  the  ser- 
vient tenement  of  all  the  benefit  of  his  land  is  not  material, 
for  it  might  still  have  been  granted.'^ 

A  grant  cannot  be  presumed  if  an  actual  grant  would  have 

•?■  11  H.  L.  C.  290;  34  L.  J.  C.  P.  342.  In  Lanfranchi  v.  Mackenzie 
(L.  R.  4  Eq.  421;  86  L.  J.  Cli.  518),  Malins,  V.  C,  said:  "  Mr.  Glasse 
has  referred  me  to  a  case  of  Tapling  v.  Jones,  and  has  argued  that  it  " 
(i.  e.  the  j'ight  to  light)  "  now  depends  not  on  the  common  law,  or  the 
ancient  principle,  but  upon  the  statute.  I  do  not  understand  the  statute 
to  have  made  any  difference.  I  only  read  the  statute  as  meaning  this 
(and  I  believe  it  has  been  uniformly  so  read),  that  there  was  no  absolute 
period  theretofore,  but  now  the  period  is  fixed  at  twenty  years."  .... 
"  The  cases  since  that  statute  have  proceeded  upon  the  same  principle  as 
before,"  &c. 

*  Carlyon  r.  Lovering,  1  PI.  &  N.  784  ;  26  L.  J.  Exch.  251. 


ACQUISITION   BY   PRESCRIPTION.  159 

been  void  by  reason  of  an  act  of  parliament.^     It  is  not,  how- 
ever, essential  for  this  purpose  that  the  act  shoukl  prohibit  the 
grant  or  the  easement  in  express  terms ;  it  is  sufficient   j^^ 
to  prevent   the   acquisition  of    a   prescriptive  right   scHption 

i  -I  X  i.  o  adversely 

that  the  grant  would  have  been  at  variance  with  the  to  a  stat- 
purpose  of  the  act.  /  Thus,  in  the  case  of  The  Roch- 
dale Canal  Company  v.  Radcliffe,"*  a  canal  had  been  made 
under  the  provisions  of  certain  acts  of  parliament,  and  power 
was  given  to  all  mill-owners  within  a  certain  distance  to  sup- 
ply their  engines  with  water  for  the  sole  purpose  of  condens- 
ing steam,  the  water  after  use  to  be  returned  to  the  canal. 
The  action  was  brought  for  taking  water  for  other  purposes 
than  condensing,  and  a  claim  of  right  to  use  the  water  for 
those  purposes  was  set  up  under  the  Prescription  Act.  It 
was  decided,  however,  that  the  claim  could  not  be  allowed,  as 
the  company  was  established  to  make  a  canal  for  the  public  l""^ 
benefit,  and  when  it  was  made,  all  the  queen's  subjects  were 
to  have  the  right  of  using  it,  paying  toll  ;  that  it  became  a 
turnpike  road,  which  could  only  be  kept  in  repair  by  main- 
taining in  it  the  quantity  of  water  necessary  for  floating 
barges  ;  that  the  prescription  claim  was  a  claim  by  supposed 
grant  to  take  more  water  than  was  allowed  by  the  act,  what- 
ever the  consequences  might  be  to  the  navigation  ;  that  if  the 
company  had  actually  made  a  grant  of  the  water  in  the  terms 
of  the  plea,  such  a  grant  would  have  been  ultra  vires  and  bad, 
and  therefore  that  the  right  could  not  be  acquired  by  prescrip- 
tion. \ 

The  fact  that  a  statute  has  extinguished  certain  easements 
at  a  particular  date  will  not  prevent  the  acquisition  of  similar 
easements  at  a  future  time  under  the  Prescription  Act,  unless 
the  statute  also  prohibited  future  grants  of  those  rights.  In 
the  absence  of  any  such  prohibition,  there  is  no  reason  why 

2  Mill  V.  Commissioners  of  the  New  Forest,  18  C.  B,  60;  25  L.  J.  C.  P. 
212. 

"'  18  Q.  B.  287;  21  L.  J.  Q.  B.  297;  Staffordshire  and  Worcestershire 
Canal  Co.  v.  Birmingham  Canal  Co.  L.  R.  1  H.  L.  254  ;  35  L.  J.  Ch.  757; 
The  National  Guaranteed  Manure  Co.  v.  Donald,  4  H.  &  N.  8  ;  28  L.  J. 
Exch.  185. 


160  ACQUISITION   OF   EASEMENTS. 

a  jury  may  not,  after  the  full  period  of  user  required  by  the 
act,  presume  a  grant  to  have  been  made  subsequently  to  the 
statute." 

No  presumption  of  a  grant  can  be  made,  and  therefore  no 
No  re-  easement  can  be  acquired  by  prescription,  if  the  ser- 
scription,      yicnt  owncr  has  been  incapable,  from  any  cause,  of 

if  servient  .      .  .  .       __^  .  ^ 

owner  in-  rcsistuig  the  uscr.  It  IS  said  in  VVynstanley  v.  Lee," 
resisting*  that  the  courts  presume  a  grant  in  ordinary  cases 
"®^'''  after  long  uninterrupted  user,  because  they  presume 

that  the  party  against  whom  the  right  is  claimed  would  not 
have  abstained  from  exercising  his  right  of  interference,  know- 
ing that  twenty  years'  abstinence  would  extinguish  it,  unless 
he  intended  to  permit  the  enjoyment ;  if,  however,  the  ser- 
vient owner  had  no  means  of  resistance,  it  is  clear  the  reason 
for  this  presumption  cannot  exist,  and  the  presumption  can- 
not be  made.  For  this  cause  user  over  the  servient  tenement 
while  it  is  leased  to  a  tenant,  during  which  time  the  landlord 
is  incapable  of  resisting,  is  not  sufficient  to  raise  a  presump- 
tion of  grant  by  the  landlord,^  unless,  indeed,  the  landlord, 
with  notice  of  the  user,  has  renewed  the  lease  without  taking 
the  land  into  his  possession  and  stopping  the  user,  or  without 
insisting  on  resistance  by  the  incoming  tenant.* 

So,  also,  if  the  easement  is  of  such  a  nature  that  the  user 
is  exercised  upon  land  not  the  property  of  the  servient  owner, 
and  the  servient  owner  has  no  means  of  resisting  the  user,  no 
presumption  of  a  grant  can  arise  until  the  servient  owner  has 
sustained  actual  injury,  and  has  submitted  to  it  for  the  full 
prescriptive  period.  In  the  case  of  light  received  across  the 
servient  tenement,  the  servient  owner  has  the  means  of  resist- 
ing enjoyment,  although  the  enjoyment  is  actually  on  land 
not  his  property,  for  he  can  build  a  wall  or  other  obstacle  on 
his  own  ground,  and  this  is  the  course  he  is  bound  to  adopt  to 

"  Campbell  v.  Wilson,  3  East,  294;  Race  v.  Ward,  7  E.  &  B.  384;  26 
L.  J.  Q.  B.  133;  Holden  v.  Tilley,  1  F.  &  F.  650. 

"  Per  Sir  T.  Plumer,  M.  R.  2  Sw.  at  p.  340. 

^  Winship  v.  Hudspeth,  10  Exch.  5;  2^  L.  J.  Exch.  268;  Baxter  v. 
Taylor,  4  B.  &  Ad.  72. 

2  Bishop  V.  Springett,  1  L.  J.  N.  S.  K.  B.  13. 


ACQUISITION   BY   PRESCRIPTION.  161 

prevent  a  right  to  light  being  acquired.  There  are,  however, 
many  cases  in  which  the  servient  owner  cannot  resist  the  user, 
because  he  is  not  the  owner  of  the  soil  where  the  user  is  en- 
joyed. Thus,  in  Blackett  v.  Bradley,'"  a  right  was  claimed  to 
have  been  acquired  under  the  Prescription  Act  of  working 
mines  without  leaving  any  support  for  the  surface-land  ;  but 
it  was  held  that  the  right  could  not  be  so  gained,  inasmuch  as 
no  act  had  been  done  on  the  surface-land,  and  the  landowner 
could  not  prevent  the  mine-owner  excavating  his  own  mines 
in  any  manner  he  pleased  ;  and  so,  also,  in  the  case  of  Mur- 
gatroyd  v.  Robinson,*  it  was  held  that  a  practice  of  placing 
cinders  in  heaps  upon  land  abutting  on  a  stream,  or  even  in 
the  stream,  continued  for  twenty  years,  could  not  be  set  up 
as  a  defence  to  an  action  by  a  mill-owner  lower  down  the 
stream,  whose  mill  was  damaged  by  the  cinders  floating  down, 
unless  the  cinders  had  been  accustomed  to  float  down,  and 
similar  damage  had  been  submitted  to  for  the  whole  period  of 
the  twenty  years. 

The  power  of   resistance  which  is  requisite  to  render   an 
easement  capable  of  being  acquired  by  prescription, 
is  not  a  power  of  resisting  only  by  an  immense  out-    to  resist 
lay  of  money,  or  by  the  employment  of  almost  super-   reasonable 
human  efforts,  but  a  power  of  resisting  by  some  rea-   ™'^^"^- 
sonable  means.^     Thus,  in  Arkwright  v.  Gell,'  Parke,  B.,  said, 
while  delivering  the  judgment  of  the  court :  "  How  can  it  be 
supposed  that  the  mine-owners  could  have  meant  to  burden 
themselves  with  such  a  servitude  so  destructive  to  their  inter- 
ests ;  and  what  is  there  to  raise  an  inference  of  such  an  inten- 
tion ?    The  mine-owner  could  not  bring  any  action  against  the 
person  using  the  stream  of  water,  so  that  the  omission  to  bring 
an  action  could  afford  no  argument  in  favor  of  the  presump- 
tion of  a  grant ;  nor  could  he  prevent  the  enjoyment  of  that 
stream  of  water  by  any  act  of  his,  except  by  at  once  making  a 
sough  at  a  lower  level,  and  thus  taking  away  the  water  en- 

»•  1  B.  &  S.  940  ;  31  L.  J.  Q.  B.  65. 

«  7  E.  &  B.  391;  26  L.  J.  Q.  B.  233;  Cooper  v.  Barber,  3  Taunt.  99. 
1  See  Angus  v.  Dalton,  L.  R.  3  Q.  B.  D.  85. 
'  5  M.  &  W.  203;  8  L.  J.  N.  S.  Excb.  201. 
11 


162  ACQUISITION   OF  EASEMENTS. 

tirely  ;  a  course  so  expensive  and  inconvenient  that  it  would 
be  very  unreasonable,  and  a  very  improper  extension  of  the 
principle  applied  to  the  case  of  lights,  to  infer  from  the  absti- 
nence from  such  an  act  an  intention  to  grant  the  use  of  the 
water  in  perpetuity  as  a  matter  of  right."  So,  also,  in  the 
case  of  Webb  v.  Bird,"  which  was  an  action  for  obstructing 
the  wind  accustomed  to  flow  to  a  windmill,  the  Court  of  Ex- 
chequer Chamber  said  :  "  We  think,  in  accordance  with  the 
judguient  of  the  Court  of  Common  Pleas,  and  the  judgment 
in  Chasemore  v.  Richards,  that  the  presumption  of  a  grant 
from  long  continued  enjoyment  only  arises  where  the  person 
against  whom  the  right  is  claimed  might  have  interrupted  or 
prevented  the  exercise  of  the  subject  of  the  supposed  grant. 
As  was  observed  by  Lord  Wensleydale,  it  was  going  very  far 
to  say  a  man  must  go  to  the  expense  of  putting  up  a  screen  to 
window-lights  to  prevent  a  right  being  gained  by  twenty 
vears'  enjoyment.  But  in  that  case  the  right  claimed,  which 
was  the  percolating  of  water  iinder  ground,  went  far  beyond 
the  case  of  a  window.  In  the  present  case  it  would  be  practi- 
cally so  difficult,  even  if  not  absolutely  impossible,  to  interfere 
with  or  prevent  the  exercise  of  the  right  claimed,  subject  as  it 
must  be  to  so  much  variation  and  uncertainty,  as  pointed  out 
in  the  judgment  of  the  court  below.  And  we  think  it  clear 
'that  no  presumption  of  a  grant,  or  easement  in  the  nature  of 
a  grant,  can  be  raised  from  the  non-interruption  of  the  exer- 
cise of  what  is  called  a  right  by  the  person  against  whom  it  is 
claimed,  as  a  non-interruption  by  one  who  might  prevent  or 
interrupt  it." 

A  presumption  of  a  grant  cannot  arise,  and  consequently  an 
Incapacity  ©asement  cannot  be  acquired  by  prescription,  if  the 
of  servient    servient  owner  at  the  commencement  of  the  prescrip- 

owner  to  .  .  .  '^  ^ 

make  a        tive  user  was  incapable  of  making  a  grant.    Incapac- 
ity to  make  a  grant  may  be  either  legal  or  physical, 
but  in  either  case  proof  of  such  incapacity  will  rebut  a  pre- 
sumption which  might  otherwise  arise  that  such  a  grant  was 

«  13  C.  B.  N.  S.  841 ;  31  L.  J.  C.  P.  335.  In  the  court  below,  10  C.  B. 
N.  S.  268;  30  L.  J.  C.  P.  384. 


ACQUISITION   BY   PRESCRIPTION.  163 

made.  Lord  Ellenborough,  C.  J.,  has  said  that  the  founda- 
tion of  presuming  a  grant  against  any  party  is,  that  the  exer- 
cise of  the  adverse  right  on  which  such  presumption  is  founded 
was  against  the  party  capable  of  making  a  grant."  For  this 
reason  it  was  held  that  no  easement  could  be  acquired  in  cer- 
tain glebe  land,  for  that  the  rector  was  a  mere  tenant  for  life, 
and  had  no  power  to  make  a  grant  capable  of  binding  the  land 
in  the  hands  of  his  successors  ;  ""  and  for  the  same  cause  an 
easement  cannot  be  acquired  by  prescription  against  a  corpo-  ^ 
ration  established  for  a  particular  purpose  unconnected  with 
that  easement ;  for  any  grant  of  such  a  right  would  be  ultra 
vires  and  void."^ 

For  this  reason  a  railroad  company,  having  itself  only  an 
easement  in  its  road-bed,  cannot  grant  an  easement  of  a  foot- 
way for  persons  to  walk  along  its  track ;  and  no  such  prescrip- 
tive right  can  be  acquired  against  the  company  by  persons  so 
using  the  road,  even  if  all  the  other  requisites  of  a  prescription 
exist.i  For  similar  reasons  a  prescriptive  right  can  not  be 
gained  against  an  infant,  married  woman  (at  common  law),  or 
insane  person,  if  so  ivlien  the  use  commenced^  unless  continued 
for  a  sufficient  period  after  such  disability  is  removed.^ 

Neither  can  an  easement  be  acquired  by  prescription  if  the 
dominant  owner  is  incapable  of  taking  the  right  by  incapacity 
erant.     This  rule  is  founded  on  the  same  principle   of  domi- 

c  _  '■  ^  nant  owner 

as  the  last  —  that  if  from' any  cause  a  grant  could   to  take  by 
not  in  reality  have  been  made,  no  presumption  of 
such  a  grant  can  arise.     On  this  ground  it  has  been  held  that 
variable  bodies  of  persons,  such  as  inhabitants  of  a  village,  or 
parishioners  in  a  parish,  are  incapable  of  prescribing  for  any 

"  Daniel  v.  North,  11  East,  at  p.  373;  Mill  v.  Commissioners  of  the  New 
Forest,  18  C.  B.  60;  25  L.  J.  C.  P.  212. 

'"Barker  v.  Richardson,  4  B.  &  Aid.  579;  Winship  v.  Hudspeth,  10 
Exch.  5;  23  L.  J.  Exch.  269;   Sutton  v.  Lord  Montfort,  4  Sim.  559. 

^  National  Guaranteed  Manure  Co.  v.  Donald,  4  H.  &  N.  8;  28  L.  J. 
Exch.  185. 

^  Sapp  V.  Northern  Central  Railroad  Co.  to  be  reported   in  49  Md. 

^  See  Edson  v.  Munsell,  10  Allen,  557,  an  elaborate  and  valuable  judg- 
ment by  Gray,  J.;  Lamb  v.  Crosland,  4  Rich.  540. 


u. 


164  ACQUISITION   OF   EASEMENTS. 

right ;  they  can  only  chiim  by  custom.^  j  Corporations,  how- 
ever, may  prescribe  in  a  que-eshite ;  ^  but  if  a  company  is  in- 
corporated for  a  particular  purpose,  it  cannot  accept  a  grant 
of  an  easement  for  a  different  purpose,  and  consequently  can- 
not acquire  a  right  by  prescription  if  the  title  thereto  is 
founded  upon  a  presumption  of  such  a  grant.M 

In  the  last  two  cases  a  question  may  arise  as  to  the  time  at 
The  time  which  incapacity  to  make  or  take  a  grant  will  have 
at  whicii      the  effect  of  preventing  acquisition  of  an  easement 

incapacity  ..... 

must  exist  by  prescription,  for  incapacity  may  exist  at  one  time 
defeat  pre-  and  not  at  another.  The  incapacity  will  have  this 
scription.  gffect,  it  is  presumed,  only  if  it  exists  at  the  time  at 
which  it  is  necessary  to  presume  the  grant  to  have  been  exe- 
cuted. Thus,  if  an  easement  is  claimed  by  prescription  at 
common  law,  which  requires  immemorial  user,  the  presump- 
tion of  the  grant  will  be  rebutted  if  the  incapacity  can  be 
proved  at  any  period,  however  remote,  unless  the  commence- 
ment of  the  incapacity  be  shown,  for  if  that  be  shown  it  may 
still  be  presumed  that  a  grant  was  made  before  the  time  of 
legal  memory,  which  would  be  before  the  incapacity.  If, 
on  the  other  hand,  the  easement  is  claimed  under  the  Pre- 
scription Act,  it  will  be  sufficient  to  rebut  the  presumption  of 
a  grant,  to  prove  incapacity  at  the  commencement  of  the 
twenty  years,  unless  the  party  claiming  the  right  could  prove 
user  before  the  incapacity  began,  and  that  it  continued  during 
the  incapacity  up  to  the  time  of  suit.  Thus,  a  landowner  can- 
not grant  an  easement  if  he  has  leased  his  land  to  a  tenant, 
and  if  the  easement  is  first  used  during  the  tenancy,  no  pre- 
sumption of  grant  can  arise  against  him  ;  but  if  the  user 
began  before  the  lease  was  made,  and  was  continued  during 
the  lease,  and  up  to  the  time  of  suit,  there  is  no  reason  why  a 
grant  may  not  be  presumed  to  have  been  made  before  the 

2' Gateward's  case,  6  Coke,  60;  Foxall  v.  Venables,  Cro.  Eliz.  180; 
Mounsey  v.  Ismay,  3  H.  &  C.  48G;  34  L.  J.  Exch.  52;  Constable  v.  Nich- 
olson, 14  C.  B.  N.  S.  230;  32  L.  J.  C.  P.  240.  Nor  can  "  the  public  " 
acquire  any  right  by  prescription.     Curtis  v.  Keesler,  14  Barb.  511. 

^  Slackman  v.  West,  Cro.  Jac.  673. 

"  National  Guaranteed  Manure  Co.  v.  Donald,  4  H.  &  N.  8. 


ACQUISITION   BY   PRESCRIPTION.  165 

lease  was  executed.  These  remarks  must  be  considered  in 
conjunction  with  the  provisions  of  the  7th  and  8th  sections  of 
the  Prescription  Act,  which  provide  for  periods  of  incapacity. 

IN    AMERICA, 

it  seems  clear  that  a  disability  or  incapacity  which  did  not 
exist  when  the  prescriptive  user  commenced,  nor  when  the 
required  time  of  its  use  expired,  but  was  only  an  intervening 
incapacity,  or  disability,  existing  for  a  short  period  between 
those  two  termini,  cannot  destroy  the  presumption  of  a  grant, 
or  a  perfect  prescriptive  title.^  Whether  such  incapacity, 
commencing  after  the  adverse  use  has  begun,  will  ever  sus- 
pend the  acquisition  of  the  easement  until  it  is  removed, 
seems  not  fully  agreed.  Some  hold  that  if  there  be  no  disa- 
bility when  the  prescription  begins  to  run,  a  subsequent  one 
will  not  arrest  it.^  On  the  other  hand,  it  has  been  thought 
that  if  a  prescriptive  right  commences  against  an  adult  land- 
owner, who  dies  leaving  his  estate  to  infant  heirs,  before  the 
prescription  has  become  complete,  its  further  perfection  will 
be  arrested  during  the  minority  of  such  heirs.'^  But  if  so, 
probably  the  period  of  such  use  after  their  majority  could  be 
added  to,  or  tacked  upon  that  of  their  ancestor,  and  so  the  re- 
quired time  be  made  out,  notwithstanding  the  intervening 
infancy.  The  burden  of  proving  a  disability  is  on  him  who 
asserts  it.* 

No  easement  can  be  acquired  by  prescription  if  the  servi- 
ent owner  is  ignorant  of  the  user,  for  if  he  is  ig-    No  pre- 
norant  no  grant  can  be  presumed  to  have  been  made   gerlJIent 
by  him.*      In  other  words,  the  user  must  be  either   ?^"^4nt  of 
proved  to  have  been  known  to  the  owner  of  the  ser-    user, 
vient  tenement,  or  so  open  and  notorious   that  he  must  be 

1  See  Wallace  v.  Fletcher,  30  N.  H.  434. 

2  See  Tracy  v.  Atherton,  36  Vt.  503,  an  able  opinion  by  Poland,  C.  J.; 
Mebane  U.Patrick,  1  Jones  (N.  C),  26;  Reimer  u.  Stuber,  20  Penn.  St. 
463;  Wallace  v.  Fletcher,  30  N.  H.  434;  Allis  v.  Moore,  2  Allen,  306; 
Currie  v.  Gale,  3  Allen,  330. 

8  See  Melvin  v.  Whiting,  13  Pick.  184;  Lamb  v.  Crossland,  4  Rich.  536. 
*  Davidson  v.  Nicholson,  59  Ind.  411. 

f'  Daniel  v.  North,  11  East,  370;  Partridge  v.  Scott,  3  M.  &  W.  220; 
7  L.  J.  N.  S.  Exch.  101. 


106  ACQUISITION   OF   EASEMENTS. 

presumed  to  have  had  knowledge  of  it ;  ^  and  if  so,  it  is  not  es- 
sential to  prove  he  did,  in  fact,  see  the  property .^ 

That  a  person  has  notice  of  a  fact  is  frequently  a  difficult 
thin"'  to  prove  by  direct  evidence  ;  sometimes,  indeed,  it  is 
impossible  to  prove  it,  and  this  is  more  commonly  the  case 
when  the  person  whose  knowledge  is  to  be  proved  has  no  in- 
terest in  the  existence  of  the  fact,  but  still  more  difficult  is  it 
to  prove  knowledge,  if  it  is  against  his  interest  that  it  should 
be  proved.  It  is  against  the  interest  of  the  servient  owner 
that  his  knowledge  of  user  of  an  easement  during  the  period 
of  prescription  should  be  proved,  and  it  is  consequently  in 
many  cases  very  difficult  to  establish  a  right  to  an  easement 
claimed  by  prescription  ;  sometimes,  however,  knowledge  may 
be  presumed  by  reason  of  surrounding  circumstances  ;  thus, 
in  the  case  of  Gray  v.  Bond,""  Dallas,  C.  J.,  said  :  "  I  agree 
with  the  argument  which  has  been  urged  on  the  part  of  the 
defendants,  that  mere  lapse  of  time  will  not  of  itself  raise 
against  the  owner  the  presumption  of  a  grant.  When  lapse 
of  time  is  said  to  afford  such  a  presumption,  the  inference  is 
also  drawn  from  accompanying  facts  ;  and  here,  where  there 
is  no  direct  evidence  whether  or  not  the  owner  of  the  land 
had  any  knowledge  of  what  passed,  the  inference  to  be  drawn 
must,  in  a  peculiar  degree,  depend  on  the  nature  of  the  ac- 
companying facts ;  and  the  presumption  in  favor  of  a  grant 
will  be  more  or  less  probable,  as  it  may  be  more  or  less  prob- 
able that  those  facts  could  not  have  existed  without  the  con- 
sent of  the  owner  of  the  land." 

No  prescriptive  right  can  be  acquired  unless  the  dominant 
No  pre-  and  servient  tenements,  and  also  the  subject  of  the 
imiesr"  easement,  are  permanent  in  their  character  ;  for  no 
dominant      grant  Can  be  presumed  if  either  the  dominant  or  ser- 

and  servi-      ^^  ^     .  . 

ent  tene-      vieut  tenement  is  erected  or  exists  merely  for  a  tem- 

ments,  and  -i.    ,i  i  •      i      r    ^i  j.  • 

the  subject  porary  purpose,  or  it  the  subject  or  the  easement  is 
mel^rare'  intended  to  last  but  for  a  short  time.  There  are 
permanent,    yarious  authorities  in  support  of  this  proposition  — 

1  See  Morse  v.  Williams,  62  Me.  445;  Carbrey  v.  Willis,  7  Allen,  364; 
Cleveland  v.  Ware,  98  Mass.  409;  Esling  v.  Williams,  10  Barr,  126. 

2  See  Ward  v.  Warren,  15  Hun,  600;  Worrall  v.  Khoads,  2  Whart.  427. 
<^  2  B.  &  B.  atp,  671. 


ACQUISITION   BY   PRESCRIPTION.  167 

as,  for  instance,  the  case  of  Maberley  v.  Dowson,**  which  was 
an  action  for  obstructing  light  from  the  window  of  a  work- 
shop. The  shop  was  not  fixed  to  the  freehold,  but  was  built 
upon  posts  fixed  into  stone  plinths,  which  in  their  turn  rested 
upon  some  slight  brickwork  :  the  judgment  was  that  no  right 
to  light  had  been  acquired  even  by  thirty  years'  enjoyment, 
for  that  the  building  was  not  attached  to  the  freehold,  but 
was  a  mere  contrivance  for  temporary  purposes,  which  would 
not  pass  with  the  inheritance,  and  that  owing  to  its  temporary 
character  it  was  impossible  to  infer  the  consent  of  the  owners, 
or  occupiers  of  the  adjoining  land.  There  are  several  cases 
relating  to  watercourses  to  the  same  effect,  particularly  Ark- 
wright  V.  Gell,*  which  is  the  leading  case  on  the  subject  of 
acquisition  of  easements  in  artificial  watercourses,  and  which 
will  therefore  receive  further  consideration  in  the  next  section 
of  this  chapter.  For  the  present  purpose  it  may  be  stated 
that  it  was  decided  in  that  case  that  no  right  can  be  acquired 
by  prescription  to  the  flow  of  water  against  the  originator  of 
an  artificial  stream  created  manifestly  for  a  temporary  pur- 
pose —  as,  for  instance,  the  drainage  of  mines,  which  may, 
and  probably  will,  be  discontinued  when  the  working  of  the 
mines  ceases,  for  that  a  user  for  twenty  years,  or  a  longer 
time,  would  afford  no  presumption  of  a  grant  of  right  to  the 
water  in  perpetuity. 

Unless  the  user  is  of  such  a  character  that  a  valid  title  may 
be  acquired  against  all  persons,  it  is  not  capable  of    Prescrip- 
founding  a  prescriptive  title  against  any.     At  com-    nVutt^give 
mon  law  the  user  must  have  been  such  as  to  raise  a   ^  ^'^'^j^gj.  g^jj 
presumption  of  a  grant  against  the  owner  in  fee,  and   persons. 
that,   of   course,  would  have   been  binding  on  tenants,   and 
all  persons  holding  under  him  ;  but  it  may  be  thought  that 
some  change  was  effected  in  this  respect  by  the  Prescription 

'^  5  L.  J.  K.  B.  261.  This  case  was  decided  before  the  passing  of  the 
Prescription  Act. 

«  5  M.  &  W.  203;  8  L.  J.  N.  S.  201  ;  Wood  v.  Waud,  3  Exch.  748  ;  18 
L.  J.  Exch.  305;  Mason  v.  Shrewsbury  and  Hereford  Railway  Co.  L.  R. 
6  Q.  B.  578;  40  L.  J,  Q.  B.  293;  Greatrex  v.  Hayward,  8  Exch.  291; 
22  L.J.  Exch.  137. 


168  ACQUISITION   OF   EASEMENTS. 

Act,  -wliicli  enables  easements  to  be  claimed  and  acquired  in 
right  of  the  occupier  of  the  dominant  tenant  by  user  for  a  lim- 
ited number  of  years  only  :  this,  however,  is  not  the  case,  for 
though  user  need  now  be  proved  for  a  limited  period  only,  yet 
the  presumption  of  a  grant  is  thereby  raised,  not  against  the 
occupier  of  the  servient  tenement,  but  against  the  owner  in 
fee.  A  portion  of  the  judgment  of  Parke,  B.,  in  the  case  of 
Bright  V.  Walker,-^  relates  to  this  point ;  the  question  was 
whether  user  of  a  way  for  twenty  years  over  land  belonging 
to  the  Bishop  of  Worcester,  in  the  possession  of  a  lessee  for 
lives,  was  sufficient  to  confer  a  right  to  the  way.  Parke,  B., 
said :  "  The  important  question  is  whether  this  enjoyment,  as 
it  cannot  give  a  title  against  all  persons  having  estates  in  the 
locus  in  quo,  gives  a  title  as  against  the  lessee  and  the  defend- 
ants claiming  under  him,  or  not  at  all  ?  We  have  had  con- 
siderable difficulty  in  coming  to  a  conclusion  on  this  point, 
but  upon  the  fullest  consideration,  we  think  that  no  title  at  all 
is  gained  by  an  user  which  does  not  give  a  valid  title  against 
all,  and  permanently  affect  the  fee.  Before  the  statute,  this 
possession  would  indeed  have  been  evidence  to  support  a  plea 
or  claim  by  a  non-existing  grant  from  the  termor  in  the  locus 
m  quo  to  the  termor  under  whom  the  plaintiff  claims,  though 
such  a  claim  was  by  no  means  a  matter  of  ordinary  occur- 
rence, and  in  practice  the  usual  course  was  to  state  a  grant  by 
an  owner  in  fee  to  an  owner  in  fee.  But  since  the  statute, 
such  a  qualified  right,  we  think,  is  not  given  by  an  enjoyment 
for  twenty  years.  For  in  the  first  place  the  statute  is  '  for  the 
shortening  the  time  of  prescription  ;  '  and  if  the  periods  men- 
tioned in  it  are  to  be  deemed  new  times  of  prescription,  it 
must  liave  been  intended  that  the  enjoyment  for  those  periods 
should  give  a  good  title  against  all,  for  titles  by  immemorial 
prescription  are  absolute  and  valid  against  all.  They  are  such 
as  absolutely  bind  the  fee  in  the  land.  And  in  the  next  place 
the  statute  nowhere  contains  any  intimation  that  there  may 

f  1  C,  M.  &  R.  at  p.  219;  Winsbip  v.  Hudspeth,  10  Exch.  5  ;  23  L.  J. 
Exch.  268.  It  has,  however,  already  been  shown  that  it  is  not  clear  that 
an  easement  may  not  be  acquired  by  prescription  against  a  long  lease- 
holder apart  from  his  lessor.     See  ante,  p.  12. 


ACQUISITION   BY   PRESCRIPTION.  169 

be  different  classes  of  rights,  qualified  and  absolute  —  valid  as 
to  some  persons,  and  invalid  as  to  others.  From  hence  we  are 
led  to  conclude  that  an  enjoyment  of  twenty  years,  if  it  give 
not  a  good  title  against  all,  gives  no  good  title  at  all ;  and  as  it 
is  clear  that  this  enjoyment,  whilst  the  land  was  held  by  a  ten- 
ant for  life,  cannot  affect  the  reversion  in  the  bishop  now,  and 
is  therefore  not  good  as  against  every  one,  it  is  not  good  as 
against  any  one,  and  therefore  not  against  the  defendant." 

No  easement  can  be  acquired  by  prescription,  either  at  com- 
mon law  or  under  the  Prescription  Act,  unless  the  User  must 
user  or  enjoyment  has  been  "  as  of  right."  i  "  In  u^^o'f^^'^ 
order  to  establish  a  right  of  way  and  to  bring  the  right." 
case  within  this  section  "  (z.  e.  the  second  section  of  the  Pre- 
scription Act),  "  it  must  be  proved  that  the  claimant  has  en- 
joyed it  for  the  full  period  of  twenty  years,  and  that  he  has 
done  so  '  as  of  right,'  for  that  is  the  form  in  which,  by  section 
five,  such  a  claim  must  be  pleaded  ;  and  the  like  evidence 
would  have  been  required  before  the  «tatute  to  prove  a  claim 
by  prescription  or  non-existing  grant."  ^  This  being  so,  it 
becomes  very  essential  to  understand  the  meaning  of  the 
phrase  "  as  of  right,"  and  all  that  is  included  under  that  ex- 
pression. It  must,  however,  in  the  first  place  be  stated  that 
this  rule  of  law,  on  account  of  the  peculiar  form  of  the  third 
section  of  the  Prescription  Act,  does  not  apply  to  claims  to 
right  to  light.'' 

It  will  be  observed  that  the  Prescription  Act  makes  use  of 
two  expressions  somewhat  similar,  though  different    Prescrip- 
in  form.     In  the  second  section  it  says  that  no  way    !^'°"    f, ' 

''  ^  ''      User  "  as 

or  other  easement  shall  be  defeated  as  therein  men-   of  right." 
tioned,  when  such  way  or  other  matter  shall  have   r-^^'t^""'"^ 
been  actually  enjoyed  for  twenty  years  by  any  per-   thereto." 
son  claiming  right  thereto  ;  and  in  the  fifth  section,  which  re- 
lates to  pleading,  it  says  that  it  shall  be  sufficient  to  allege 
the  enjoyment  of  the  easement  claimed  as  of  right.     It  is 

1  See  ante,  p.  134 ;  Stevens  v.  Dennett,  51  N.  H.  324. 
g  Bright  V.  Walker,  1  C,  M.  &  R.,  per  Parke,  B.,  at  p.  219;  Campbell 
V.  Wilson,  3  East,  294. 
^  Sue  post,  section  2. 


170  ACQUISITION   OF   EASEMENTS. 

evident  tliat  the  act  intends  the  same  meaning  to  be  attached 
to  each  of  these  phrases.' 

These  expressions  —  enjoyment  "  as  of  right,"  and  "  chiim- 
ing  right  thereto  "  — in  the  act,  have  given  rise  to  some  diffi- 
culty as  to  their  meaning  ;  it  is  desirable,  therefore,  to  exam- 
ine the  case  in  which  the  meaning  has  been  discussed  and 
Bright  i;.  explained  at  some  length.  The  first  case  is  Bright 
Walker.  ^^  Walker,-'  already  noticed,  which  was  argued  two 
years  after  the  act  was  passed.  On  this  subject  it  was  said 
by  Parke,  B.,  when  delivering  the  judgment  of  the  Court  of 
Exchequer :  "  In  order  to  establish  a  right  of  way  and  to  bring 
the  case  within  this  section,  it  must  be  proved  that  the  claim- 
ant has  enjoyed  it  for  the  full  period  of  twenty  years,  and  that 
he  has  done  so  '  as  of  right,'  for  that  is  the  form  in  which,  by 
section  five,  such  a  claim  must  be  pleaded  :  and  the  like  evi- 
dence would  have  been  required  beforet  he  statute  to  prove 
a  claim  by  prescription  or  non-existing  grant.  Therefore,  if 
the  way  shall  appear  to  have  been  enjoyed  by  the  claimant, 
not  openly,  and  in  the  manner  that  a  person  rightfully  enti- 
tled would  have  used  it,  but  by  stealth,  as  a  trespasser  would 
have  done,  —  if  he  shall  have  occasionally  asked  the  permis- 
sion of  the  occupier  of  the  land,  —  no  title  would  be  acquired 
because  it  was  not  enjoyed  '  as  of  right.'  For  the  same  reason 
it  would  not,  if  there  had  been  unity  of  possession  during  all 
or  part  of  the  time ;  for  then  the  claimant  would  not  have 
enjoyed  '  as  of  right '  the  easement,  but  the  soil  itself." 

The  case  of  Tickle  v.  Brown*  was  decided  shortly  after 
Tickle  V.  Bright  V.  Walker  and  The  Monmouthshire  Canal 
rown.  Company  v.  Harford,  and  the  meaning  of  the  act 
received  further  and  full  consideration  by  the  Court  of  King's 
Bench.  After  reading  the  second  and  fifth  sections  of  the 
act.  Lord  Denman,  C.  J.,  continued  :  "  The  greatest  difficulty 

'"  Tickle  V.  Brown,  4  A.  &  E.  369;  5  L.  J.  N.  S.  K.  B.  119. 

J  1  C,  M.  &  R.  211 ;  Monmouthshire  Canal  Co.  v.  Harford,  1  C,  M.  &  R. 
614. 

*4  A.  &  E.  3G9;  5  L.  J.  N.  S.  K.  B.  119  ;  Beasley  v.  Clarke,  2  Bing. 
N.  C.  705;  5  L.  J.  N.  S.  C.  P.  281  ;  Gaved  v.  Martyn,  19  C.  B.  N.  S.  732; 
34  L.  J.  C.  P.  353. 


ACQUISITION   BY    PRESCRIPTION.  171 

arises  from  the  language  of  the  concluding  paragraph  of  this 
(t.  e.  the  fifth)  "  section,  and  more  particularly  from  the 
words  '  or  any  cause  or  matter  of  fact,  or  of  law  not  inconsist- 
ent with  the  simple  fact  of  enjoyment.'  As  all  these  matters 
are  required  to  be  specially  pleaded,  and  forbidden  to  be  given 
in  evidence  under  a  general  traverse  of  the  enjoyment  as  of 
right,  it  is  plain  that  they  are  treated  by  the  legislature  as 
consistent  with  such  enjoyment ;  and  as  by  the  rules  of  plead- 
ing and  of  logical  reasoning,  every  allegation  by  way  of  an- 
swer which  does  not  deny  the  matter  to  which  it  is  proposed 
as  an  answer,  is  taken  to  confess  it,  we  must  conclude  that  the 
legislature  used  the  words  '  as  of  right,'  in  such  a  sense  as 
that  a  party  confessing  the  enjoyment  '  as  of  right '  for  forty 
years,  or  twenty,  as  the  case  may  be,  may  account  for  and 
avoid  the  effect  of  it  by  alleging,  in  the  one  case,  a  consent  or 
agreement,  provided  it  be  by  deed  or  writing  (see  section 
two),  and  in  the  other,  any  contract,  &c.,  written  or  parol 
(see  section  five).  It  follows  that  the  words  as  of  right  can- 
not be  confined  to  an  adverse  right  from  all  time,  as  far  as 
evidence  shows,  for  if  they  were  so  confined,  such  enjoyment 
once  confessed  could  not  be  avoided  by  replying  that  it  was 
held  by  contract,  which  is  not  adverse.  Again,  as  the  legal 
right  to  a  way  cannot  pass  except  by  deed,  it  is  plain  that  the 
words  'enjoyment  as  of  right'  cannot  be  confined  to  enjoy- 
ment under  a  strict  legal  right,  for  then  a  consent  or  agree- 
ment in  '  writing,'  not  under  seal,  of  which  the  second  section 
speaks,  could  not  account  for  such  enjoyment.  The  words, 
therefore,  must  have  a  wider  sense ;  and  yet  they  must  have 
the  same  sense  as  the  words  '  claiming  right  thereto  '  in  the 
second  section,  otherwise  there  will  be  incongruities  in  the 
construction  of  the  act.  It  seems,  therefore,  that  the  '  en- 
joyment as  of  right '  must  mean  an  enjoyment  had,  not  se- 
cretly or  by  stealth,  or  by  tacit  sufferance,  or  by  permission 
asked  from  time  to  time  on  each  occasion,  or  even  on  many 
occasions  of  using  it,  but  an  enjoyment  had  openly,  notori- 
ously, without  particular  leave  at  the  time,  by  a  person  claim- 
ing to  use  it  without  danger  of  being  treated  as  a  trespasser, 
as  a  matter  of  a  right,  whether  strictly  legal  by  prescription 


172  ACQUISITION   OF  EASEMENTS. 

and  adverse  user,  or  by  deed  conferring  the  right,  or  though 
not  strictly  legal,  yet  lawful  to  the  extent  of  excusing  a  tres- 
pass —  as  by  a  consent  or  agreement  in  writing  not  under 
seal,  in  case  of  a  plea  for  forty  years,  or  by  such  writing  or 
parol  consent  or  agreement,  contract  or  license,  in  case  of  a 
plea  for  twenty  years." 

From  the  above-mentioned  decisions  the  principles  are 
User  must  gained,  that  an  easement  cannot  be  acquired  by 
peJmisswn  prescription  if  the  user  has  been  enjoyed  by  permis- 
°^  Vt.         sion  or  by  stealth,  or  if  it  has  been  precarious  ;  but 

stealth  or  _     _  •'  '  .  ^ 

precarious,    permission  for  user  does  not  in  every  case  prevent 

the  acquisition  of  an  easement  by  prescription,  for  the  enjoy- 
ment "  as  of  right,"  it  is  said,  is  not  to  be  confined  to  an 
adverse  right,  and  enjoyment  is  as  of  right  if  it  is  had  by 
permission.  But  whether  an  easement  can  be  gained  after 
user  enjoyed  by  permission  depends  upon  the  time  when  the 
permission  was  granted.  On  this  point  it  has  been  laid  down 
that  if  the  permission  is  given  before  the  commencement,  and 
if  it  extends  over  the  whole  period  of  prescription,  the  user  is 
"  as  of  right,"  and  without  interruption,  within  the  meaning 
of  the  act ;  but  that  it  is  otherwise,  if  permission  is  given 
from  time  to  time  during  the  continuance  of  the  user.' 

Besides  enjoyment  by  permission  or  by  stealth,  enjoyment 
that  is  not  peaceable,  is  insufficient  to  confer  a  right 

User  must  ^  .      .  ,      ,  .       .  ^ 

be  peace-  to  au  easeuieut  by  prescription ;  and  this  is  so  tor 
two  reasons  —  such  enjoyment  cannot  be  said  to 
have  been  "as  of  right,"  and  it  is  impossible  that  any  pre- 
sumption of  a  grant  can  arise  from  that  kind  of  user.  It  is 
commonly  said  that  no  easement  can  be  acquired  by  prescrip- 
tion if  the  user  has  been  enjoyed,  vi,  clam^  aut  precario.  The 
word  vi  does  not  simply  mean  by  violence  or  force,  but  it 
means  also  during  strife  or  contention  of  any  kind — as,  for 
instance,  that  the  enjoyment  has  been  had  during  a  period  of 
litigation  about  the  right  claimed,  or  that  the  user  has  been 
continually  disputed  and  interrupted  by  physical  obstacles 
placed  with  a  view  of  rendering  user  impracticable.     If  the 

'  Kinloch  v.  Nevile,  6  M.  &  W.  795  ;  Clay  v.  Thackrah,  9  C.  &  P.  47. 


ACQUISITION  BY  PRESCRIPTION.  173 

user  lias  been  in  this  sense  not  peaceably  enjoyed,  no  easement 
can  be  thereby  acquired.'" 

Verbal  complaints,  remonstrances,  positive  prohibitions, 
and  the  like  are  sufficient  to  prevent  the  acquisition  of  the 
right.  ^ 

It  is  provided  by  the  Prescription  Act  (section  four),  that 
no  act  or  other  matter  is  to   be  deemed   to   be  an    interrup- 
interruption  within  the  meaning  of  the  act,  unless    dence^^^" 
the    same    shall  have  been   submitted   to  or  acqui-    asamst   , 

^    _       peaceable 

esced  in  for  one  year ;  but  notwithstanding  this  enjoyment, 
provision,  an  interruption  for  a  shorter  pei'iod  may  be  very  im- 
portant as  evidence  of  the  enjoyment  not  having  been  "  as 
of  right."  '^ 

Besides  the   above,  there  are  various  circumstances  which 

will  have  the  effect  of  rendering  user  insufficient  for   Privilege 

1 
the  acquisition   of  an   easement  by  prescription  —   enjoyed  in 

as,  for  instance,  the  circumstance  that  the  right  has    ^'"^  cjiarac- 

'  _      '        _  "  ter  of  an 

not  been  enjoyed  in  the  character  of  an  easement,  easement. 
It  has  already  been  remarked  that  unity  of  possession  dur- 
ing all  or  part  of  the  time  will  prevent  the  acquisition  of 
a  prescriptive  title,  for  in  that  case  "  the  claimant  would 
not  have  enjoyed  '  as  of  right '  the  easement,  but  the  soil  it- 
self."" A  tenant  of  land  cannot  acquire  an  easement  by 
prescription  in  other  land  of  his  lessor,  even  though  the  lat- 
ter has  merely  a  term  of  years  or  an  estate  for  life  in  it,  and 
there  is  no  unity  of  seisin  or  possession,  for  all  the  tenant's 
rights  are  derived  from  his  lessor,  and  as  the  latter  could  not 

"'  Eaton  V.  Swansea  Waterworks  Co.  17  Q.  B.  26  7;  20  L.  J.  Q.  B.  482; 
Livett  V.  Wilson,  3  Bing.  115  ;  3  L.  J.  C.  P.  186  ;  Gaved  v.  Martyn,  19  C. 
B.  N.  S.  732;  34  L.  J.  C.  P.  353. 

1  See  Powell  v.  Bagg,  8  Gray,  441 ;  Stillman  v.  White  Rock  Co.  3  Wood. 
&  Min.  549;  Nichols  v.  Aylor,  7  Leigh,  565  ;  Tracy  v.  Atherton,  36  Vt. 
514;  Lehigh  Valley  Railroad  v.  McFarlan,  30  N.  J.  Eq.  135;  Chicago  v. 
Northwestern  Railway  Co.  90  111.  349. 

"  Eaton  V.  Swansea  Waterworks  Co.  17  Q.  B.  267. 

"  Bright  V.  Walker,  1  C,  M.  &  R.  at  p.  219  ;  Onley  v.  Gardiner,  4  M.  & 
W.  496;  8  L.  J.  N.  S.  Exch.  102  ;  Battishill  v.  Reed,  18  C.  B.  696.  And 
see  Gayetty  v.  Bethune,  14  Mass.  49,  in  which  the  point  was  directly  de- 
cided as  early  as  1817. 


174  ACQUISITION   OF   EASEMENTS. 

have  an  enjoyment  of  an  easement  as  of  right  against  him 
self  within  the  meaning  of  the  statute,  so  neither  can  his  ten- 
ant against  him.^     For  the  same  reason  a  tenant  of  land  can- 
not acquire  an  easement  by  prescription  in  other  land  in  his 
occupation,  though  held  under  a  different  landlord.^ 

Lastly,  the  user  must  be  uninterrupted  and  continuous,  in 
User  must  Order  that  it  may  suffice  for  the  acquisition  of  an 
ru  "ed^and  easement  by  prescription,  for,  independently  of  the 
coutiuiious.  Prescription  Act,  which  appears  to  contemplate  con- 
tiiuious  user,  no  presumption  of  a  grant  can  arise,  if  the  user 
has  not  been  continuous.  It  will  be  seen,  however,  that  it  is 
not  requisite,  in  order  to  support  a  claim  by  prescription,  ei- 
ther at  common  law  or  under  the  act,  that  the  user  shall  be 
incessant ;  ^  indeed,  many  easements  are  by  their  nature  in- 
termittent —  that  is,  usable  or  used  only  at  times  —  but  the 
words  of  the  act  would  not  be  satisfied  by  an  enjoyment  for 
different  and  unconnected  periods  only,  which,  added  together, 
would  make  up  twenty  years,  for  to  hold  otherwise  would  let 
in  a  great  number  of  cases  in  which  the  presumption  of  a 
grant  could  never  arise,''  and  such  enjoyment  would  for  that 
reason  be  insufficient  at  common  law.  But  at  common  law 
the  time  of  enjoyment  by  A.  may  be  added  to  the  time  of  im- 
mediately succeeding  use  by  B.,  his  heir,  devisee,  or  grantee, 
who  immediately  continues  the  use,  and  thus  make  up  the  re- 
quired period.^  It  might  be  otherwise  as  to  successive  own- 
ers, not  claiming  under  each  other .^     It  is  said  above  that  the 

p  "Warburton  v.  Parke,  2  H.  &  N.  64  ;  26  L.  J.  Exch.  299.  In  cases  of 
light  a  tenant  may  be  able  to  acquire  an  easement  over  his  landlord's 
ground,  but  this  is  on  account  of  the  peculiar  expression  of  the  third  sec- 
tion of  the  Prescription  Act.  Frewen  v.  Phillips,  11  C.  B.  N.  S.  449; 
30  L.  J.  C.  P.  356.     See  Rutland  v.  Keep,  41  Wis.  490. 

9  Harbidge  v.  Warwick,  3  Exch.  5.52;  Clay  v.  Thackrah,  9  C.  &  P.  4  7. 

1  See  Pollard  v.  Barnes,  2  Cush.  198. 

»■  Onley  v.  Gardiner,  4  M.  &  W.  496;  8  L.  J.  N.  S.  Exch.  102;  Mon- 
mouthshire Canal  Co.  v.  Harford,  1  C,  M.  &  R.,  per  Parke,  B.,  at  p.  631; 
Roberts  i-.  Clarke,  18  L.  T.  49.  But  see  per  Lord  Hatherley,  L.  C,  in  La- 
dyman  v.  (irave,  L.  R.  6  Ch.  App.  at  p.  768. 

2  Leonard  v.  Leonard,  7  Allen,  277;  Hill  v.  Crosby,  2  Pick.  466;  Sar- 
gent t'.  Ballard,  9  Pick.  251;  Kent  v.  Waite,  10  Pick.  138. 

2  Melvin  v.  Proprietors  of  Locks  and  Canals,  5  Met.  32. 


ACQUISITION   BY   PRESCRIPTION.  175 

user  must  be  uni7iterrupted  and  continuous ;  by  a  breach  of 
continuity  is  meant  a  cessation  of  user  by  the  vohintary  act 
of  the  person  claiming  the  right ;  but  it  will  be  seen  shortly 
that  by  the  word  "interruption"  the  Prescription  Act  in- 
tends interruption  by  the  act  of  a  person  other  than  the  claim- 
ant of  the  right  who  opposes  the  user  of  the  easement. 

Interruptions  are  of  three  kinds  :  (a)  Interruptions  in  the 
enjoyment  as  of  right ;  (5)  Interruptions  in  the  en-    intemip- 
joyment  as  an  easement;  (c)  Interruptions  in  the   [h^rgg"^ 
enjoyment  in  fact.  kinds. 

It  has  been  already  shown  that  at  common  law  the  user 
must  have  been  "  as  of  right,"  in  order  that  an  ease-  ,.  ^^  . 
ment  may  be  acquired  by  prescription,  and  that  no  ''i'^*^- 
grant  can  be  presumed  if  the  user  was  not  "  as  of  right ;  "  if, 
therefore,  any  interruption  can  be  shown  to  have  occurred  in 
the  enjoyment  "  as  of  right,"  the  presumption  of  a  grant  is 
rebutted  —  no  matter,  at  common  law,  at  what  time  the  in- 
terruption occurred.  The  Prescription  Act  expressly  requires 
actual  enjoyment  by  the  person  claiming  right  to  an  easement 
without  interruption  for  the  full  period  of  twenty  years;  if 
therefore  an  interruption  occurs  at  anytime  during  the  twenty 
years  in  the  enjoyment  "  as  of  right,"  the  statute  is  not  satis- 
fied.* This  was  pointed  out  by  Parke,  B.,  and  Lord  Lynd- 
hurst,  C.  B.,  during  the  argument  of  the  case  of  the  Mon- 
mouthshire Canal  Company  v.  Harford,*  when  the  former 
said  :  "  The  issue  is  whether  the  occupiers  of  the  closes  of 
right  and  without  interruption  have  had  the  use  and  enjoy- 
ment for  twenty  years  as  they  insist  under  this  issue,  there- 
fore they  must  show  an  uninterrupted  rightful  enjo^nnent  for 
twenty  years.  If  they  had  enjoyed  it  for  one  week,  and  not 
for  the  next,  and  so  on  alternately,  their  plea  would  not  have 
been  proved.  In  the  case  of  Bright  v.  Walker,  lately  decided 
in  this  court,  it  was  held  that  the  claimant  must  show  that  he 
has  enjoyed  the  way  for  the  full  period  of  twenty  years,  and 
that  he  has  done  so  as  of  right  and  ivithout  interruption.,  and 

*  Light  need  not  be  enjoyed  "  as  of  right."     See  post,  section  2. 
'  1  C,  M.  &  R.  at  p.  631  ;  Briglit  v.  Walker,  1  C,  M.  &  R.  211. 


176  ACQUISITION   OF   EASEMENTS. 

that  such  claim  might  be  answered  by  proof  of  a  license  writ- 
ten or  parol  for  a  limited  period,  comprising  the  whole  or  part 
of  the  twenty  years."  In  the  present  case  the  permission 
asked  for  and  given  shows  that  the  occupiers  of  the  closes  did 
not  enjoy  the  way  '  as  of  right,'  and  also  that  they  did  not 
enjoy  it  uninterruptedly."  Lord  Lyndhurst  said:  "  The  sim- 
ple issue  is,  whether  there  has  been  a  continued  enjoyment  of 
the  way  for  twenty  years,  and  any  evidence  negativing  the 
continuance  is  admissible.  Every  time  the  occupiers  asked 
for  leave  they  admitted  that  the  former  license  had  expired, 
and  that  the  continuance  of  the  enjoyment  was  broken." 

An  interruption  may  also  occur  in  the  enjoyment  of  an 
(b)  As  an  ©asement  as  an  easement  —  that  is,  the  user  may 
easement,  continue  in  point  of  fact,  but  it  may  be  changed  in 
character,  as,  for  instance,  it  may  become  one  of  the  rights  of 
ownership  if  a  union  of  ownership  should  take  place.  An  in- 
terruption of  this  kind  will  prevent  the  acquisition  of  an  ease- 
ment by  prescription,  both  at  common  law  and  under  the  act. 
At  common  law  such  an  interruption  would  negative  the  pre- 
sumption of  a  grant,  for  if  a  grant  had  originally  been  made, 
the  right  granted  would  be  lost  or  merged  when  the  grantee 
acquired  the  soil  of  the  servient  tenement  ;  on  severance  of 
the  dominant  and  servient  tenements  the  easement  could  only 
be  re-created  by  a  fresh  grant,  and  this  would  be  inconsistent 
with  the  idea  that  the  easement  was  created  by  a  grant  before 
the  time  of  legal  memory.  Under  the  act,  unity  of  ownership 
operates  as  an  interruption  which  will  prevent  a  prescriptive 
title  being  gained,  for  during  the  union  the  claimant  does  not 
enjoy  as  of  right  the  easement,  but  the  soil  itself." 

"  It  would  seem  that  proof  of  a  license  comprising  the  whole  of  the  pe- 
riod of  twenty  years  would  not  defeat  prescription  under  the  act,  for  it  has 
been  shown  (ante,  p.  171)  that  enjoyment  "  as  of  right "  in  the  act  is  not 
to  be  limited  to  an  adverse  right,  and  that  if  a  license  is  given  before  the 
commencement,  and  if  it  extends  over  the  whole  period  of  prescription, 
the  user  is  "as  of  right,"  and  without  interruption,  within  the  meaning  of 
the  act. 

''  Bright  V.  Walker,  1  C,  M.  &  R.  at  p.  219;  Onley  v.  Gardiner,  4  M.  & 
W.  496;  8  L.  J.  N.  S.  Exch.  102;  Harbidge  v.  Warwick,  3  Exch.  552; 
18  L.  J.  Exch.  245;  Battishill  v.  Reed,  18  C.  B.  69G. 


ACQUISITION   BY   PRESCRIPTION.  177 

Interruptions  in  the  enjoyment  in  fact  are  of  two  kinds, 
namely :  interruptions  which  prevent  acquisition  of 

i_        i  1  1    ■    ^  i_-  -Lt  •        i'^)  In  fact. 

easements  at  common  law,  and  interruptions  within 
the  meaning  of  the  Prescription  Act. 

At  common  law  any  interruption  in  fact,  from  which  it  may 
be  inferred  that  the  enjoyment  was  not  rightful,  or    jntgrrup- 
that  the  claimant  of  the  easement  intended  to  aban-   t'ons  in 

,.,.(.,  i^ct  as  at 

don  his  claim,  or  which  is  of  such  a  nature  that  a    commoa 

jury  would  in  consequence  refuse  to  presume  that  a 

grant  had  been  made,  is  sufficient  to    prevent    prescription. 

Under  the  first  head  may  be  classed  such  acts  of  interruption 

as  the  locking  of  gates,  or  erection  of  barriers  across  a  way, 

or  the  stopping  of  water  flowing  in  an  artificial  watercourse  ; 

for  from  acts  of  this  kind  it  may  be  inferred  that  no  right  to 

use   the  way  or  the  water  is  acknowledged  by  the  servient 

owner  to  exist  in  point  of  fact,  and  that  if  the  way  were  used 

a  trespass  would  be  committed. 

Mere  non-user  will  not,  in  every  case,  prevent  acquisition 

of  an  easement  any  more  than  it  will  afford  conclu-   ^, 

■  T  p     1         1  e  Non-user. 

sive  evidence  of  abandonment  after  an  easement  has 

been  acquired,  but  non-user,  to  have  that  effect,  must  be 
coupled  with  some  act  indicative  of  an  intention  to  abandon 
the  claim,  or  it  must  be  of  such  long  continuance,  and  so  con- 
stant, as  to  .indicate  an  intention  not  to  resume  the  user."" 
Non-user,  however,  which  would  not  prevent  acquisition  of 
an  easement  at  common  law,  may  often  be  sufficient  to  do  so 
under  the  Prescription  Act,  which  requires  actual  enjoyment. 
The  case  of  Davies  v.  Williams  ^  related  to  a  right  of  com- 
mon, but  the  principle  of  law  laid  down  in  that  case    „    .  , 

.  ^  ^  Partial  in- 

applies  equally  to  an  easement  if  it  is  m  its  nature    temiption 
divisible  ;  it  is  there  decided  that  if  the  user  of  the 
easement  is  interrupted  in  one  part,  the  interruption  only  af- 
fects the  acquisition  of  the  easement  as  to  that  part. 

^  Moore  v.  Rawson,  3  B.  &  C.  332;  3  L.  J.  K.  B.  32;  Stokoe  v.  Singers, 
8  E.  &  B.  31  ;  26  L.  J.  Q.  B.  257  ;  Regina  v.  Chorley,  12  Q.  B.  515.  °See 
Pollard  V.  Barnes,  2  Cush.  197;  Haag  v.  Delorme,  30  Wis.  591;  post, 
chapter  V. 

»^  16  Q.  B.  546;  20  L.  J.  Q.  B.  330. 
12 


178  ACQUISITION   OF  EASEMENTS, 

It  should  be  mentioned  that  a  trifling  alteration  in  the 
T  iflin"-  course  of  a  stream,  or  an  accidental  stoppage  in  the 
and  acci-  flow  of  Water,  Is  not  an  interruption  which  will  pre- 
terrup-  vent  prescription,  for  if  such  interruptions  had  that 
tions.  effect,  said  Tindal,  C.  J.,  the  accident  of  a  dry  sea- 

son, or  other  causes  over  which  the  party  could  have  no  con- 
trol, might  deprive  him  of  a  right  established  by  the  longest 
course  of  enjoyment.^ 

So  also  suspension  of  user  by  agreement,  or  the  temporary 
substitution,  by  agreement  or  for  convenience,  of  an- 
of  user  by  Other  way  for  that  to  which  the  right  is  claimed,  is 
agreemeu  .  ^^^  ^^^  interruption  in  the  enjoyment  which  will  de- 
feat a  claim  by  prescription,  for  under  those  circumstances 
there  is  constructive  enjoyment  of  the  easement,  and  such 
non-user  will  not  rebut  the  presumption  of  a  grant/ 

Interruptions,  when  claims  to  easements  are  made  under 
Interrup-  the  Prescription  Act,  somewhat  differ  from  interrup- 
facrunder  tious  when  claims  are  made  by  prescription  at  com- 
the  Pre-       j^^qj-^  j.^^  since  it  was  thought  right  by  the  legisla- 

scnption  '  .  o  D  J  o 

Act.  ture  when  passing  that  act  to  define  what  was  meant 

by  the  word  "  interruption  "  as  it  is  used  in  the  statute.  By 
the  fourth  section  of  the  act  it  is  enacted,  that  "  no  act  or 
other  matter  shall  be  deemed  to  be  an  interruption  within  the 
meaning  of  this  statute,  unless  the  same  shall  have  been  or 
shall  be  submitted  to  or  acquiesced  in  for  one  year  after  the 
party  interrupted  shall  have  had  or  shall  have  notice  thereof, 
and  of  the  person  making  or  authorizing  the  same  to  be 
made."  However  conclusive  an  interruption,  therefore,  may 
be  against  the  presumption  of  a  grant,  in  which  way  it  may 
prevent  acquisition  of  an  easement  at  common  law,  it  will 
have  no  effect  under  the  statute,  unless  it  has  been  submitted 
to  for  one  year.  Thef  unreasonableness  of  this  provision  was 
remarked  by  Parke,  B.,  in  the  Exchequer  Chamber,  in  the 
case  of  Flight  v.  Thomas,**  and  it  was  also  noticed  in  the  same 

y  Hall  V.  Swift,  4  Bing.  N.  C.  381. 

"  Payne  v.  Shedden,  1  Moo.  8f  Rob.  382;  Reignolds  v.  Edwards,  Willes, 
282;  Carr  v.  Foster,  3  Q.  B.,  per  Patteson,  J.,  at  p.  585. 
«  11  A.  &  E.  at  p.  693. 


ACQUISITION   BY   PRESCRIPTION.  179 

case,  as  a  result  of  this  section,  that  although  there  may  have 
been  a  number  of  interruptions  during  prescriptive  user,  they 
will  have  no  effect  in  preventing  prescription  under  the  act 
unless  one  of  them  happened  to  continue  and  to  be  sub- 
mitted to  for  a  year.  The  learned  judge  expressed  his  opin- 
ion that  the  more  reasonable  provision  would  have  been  that 
►  any  interruption  acquiesced  in  should  suffice  to  prevent  pre- 
scription, as  that  would  conclusively  rebut  the  supposition  of 
a  grant.  But  it  was  impossible  to  get  over  the  words  of  the 
section. 

It  has  been  determined  that    an    interruption  within    the 
meaning  of  the  act  is  an  actual  discontinuance  of  en-   Voluntary 
joyment  of  user,  and  that  not  by  the  mere  voluntary    oruser"^ 
act  of  the  claimant  of  the  rig-ht,  but  in  consequence    f"*^  "®®''. 

^  ^  by  pennis- 

of  an  obstructive  act  done  by  another  person.  In  sfon. 
Carr  v.  Foster,*  it  was  held  that  non-user  for  two  years  in  the 
middle  of  the  prescriptive  period  did  not  defeat  the  chiim,  for 
that  the  words  of  the  act  are  "  without  interruption,"  not 
"  without  intermission,"  and  that  by  the  fourth  section  the 
interruption  must  be  submitted  to  or  acquiesced  in  after  no- 
tice thereof  and  of  the  j^erson  makiyig  or  authorizi^ig  it  to  be 
made,  all  which  clearly  indicates  the  meaning  of  the  statute. 
So,  also,  it  was  determined  in  the  case  of  The  Plasterers' 
Company  v.  The  Parish  Clerks'  Company,"  that  a  money  pay- 
ment for  permission  to  enjoy  light  was  not  an  interruption 
under  the  act,  for  that  an  interruption  within  the  meaning  of 
the  third  section  must  be  such  an  interruption  as  is  contem- 
plated by  the  fourth,  and  that  the  two  together  showed  that 
there  must  be  an  actual  discontinuance  of  the  enjoyment  by 
reason  of  an  obstruction  submitted  to  or  acquiesced  in  for  a 
year.  It  matters  not,  however,  by  whom  the  obstructive  act 
is  committed,  for  the  effect  will  be  the  same  whether  it  is 
done  by  the  owner  of  the  servient  tenement,  or  by  a  stran- 
ger.** 

Whether  an  interruption  is  submitted  to  or  acquiesced  in 

6  3  Q.  B.  581  ;  11  L.  J.  Q.  B.  284. 
°  6  Exch.  630;  20  L.  J.  Q.  B.  3G2. 
d  Da  vies  v.  Williams,  16  Q.  B.  546;  20  L.  J.  Q.  B.  330. 


180  ACQUISITION   OF   EASEMENTS. 

witliin  the  meaning  of  the  statute  is  a  question  for  the  jury, 
for   tliis   must  depend   upon   the    circumstances  of 

Acquies-  '^  i  p     i  •  •      • 

cenceiiiin-   each  case  and  the  conduct  of  the  parties;  it  is  not 
errup  ion.    j^gggj,gg^j.y  j^\y^^  q^^  action  for  obstruction  should  be 

commenced  to  rebut  the  idea  of  acquiescence  or  submission, 
for  any  conduct  indicative  of  resistance  is  sufficient/ 

Before  leaving  the  subject  of  interruptions,  a  pointy  which 
Interrupt  arose  ill  the  case  of  Clayton  v.  Corby -^  should  be  no- 
teivancy  "^  ticcd.  By  the  seventh  section  of  the  Prescription 
for  life.  ^ct  periods  of  life  estates  are  to  be  excluded  in  the 
computation  of  prescriptive  periods,  and  the  question  was,  if 
user  was  continued  during  a  life  estate,  and  the  tenant  for 
life  interrupted  the  user,  whether  the  interruption  would  be 
effectual,  if  submitted  to,  to  prevent  the  acquisition  of  the 
easement,  or  whether  the  interruption  should  be  disregarded, 
the  period  of  the  life  es-tate  being  excluded  in  the  computation 
of  the  time.  It  was  held  that  the  interruption  would  prevent 
the  acquisition  of  the  easement,  for  that  though  a  tenant  for 
life  cannot  by  acquiescence  burden  the  estate,  he  may  by  re- 
sistance free  it  from  the  easement  which  would  otherwise  be 
imposed. 

BY   DEDICATION    OR    PUBLIC    PRESCRIPTION. 

The  public,  or  some  local  portion  of  the  public,  may  acquire 
certain  rights  in  or  over  the  land  of  private  individuals.  The 
learned  author  has  apparently  not  considered  such  rights  as 
"  Easements,"  and  consequently  has  devoted  no  part  of  his 
treatise  to  them  ;  but  as  they  are  generally  considered  in  this 
country  as  at  least  "  in  the  nature  of  easements,"  some  allu- 
sion to  them  may  perhaps  be  expected  in  this  edition.  Such 
rights,  when  acquired  by  merely  some  local  portion  of  the 
public,  as  the  inhabitants  of  a  town,  village,  &c.,  may  perhaps 

«  Bennison  v.  Cartwright,  5  B.  &  S.  1;  83  L.  J.  Q.  B.  137;  Glover  v. 
Coleman,  L.  R.  10  C.  P.  108;  44  L.  J.  C.  P.  66.  Accjuiescence  by  some 
members  only  of  a  body  of  persons  who  claim  a  right  by  prescription  under 
the  act  is  not  such  an  acquiescence  as  will  defeat  the  claim.  Warrick  v. 
Queen's  College,  Oxford,  L.  R.  10  Eq.  105;  39  L.  J.  Ch.  636. 

/2  Q.  B.  813;  11  L.  J.  Q.  B.  239. 


ACQUISITION   BY   DEDICATION.  181 

be  said  to  be  gained  by  "  prescription,"  since  the  presumption 
of  a  grant — the  foundation  of  prescription  —  niay  apply  to 
such  bodies,  as  well  as  to  individuals.^  But  when  these  rights 
are  claimed  by  the  general  public,  it  seems  more  proper  to 
consider  them  as  acquired  by  presumed  dedication  of  the  land 
to  public  use,  rather  than  by  prescription  strictly  so  called, 
(although  the  term  "  prescriptive  "  use  is  frequently  applied 
to  it),  since  the  general  public,  not  being  able  to  take  by  act- 
ual grant,  ma}^  not  be  capable  of  acquiring  by  a  presumed 
grant ;  but  this  difficulty  (if  it  be  one)  is  obviated  by  calling 
it  a  right  acquired  "  by  dedication,"  since  no  grantee  is  neces- 
sary in  such  cases.  And  the  doctrine  of  dedication,  though 
comparatively  modern,  is  now  well  established.^  Such  dedi- 
cation is  considered  an  abandonment  of  the  land  by  the  owner 
to  the  public  use,  and  although  he  may  in  his  dedication  limit 
the  nature  of  the  use  to  which  the  property  may  be  subject,^ 
as  for  a  way,  a  footway,  *  landing-place,  public  square,  &c., 
yet  after  it  is  once  dedicated,  and  there  is  an  acceptance  by 
the  public,  his  power  to  interfere  with  such  use  by  the  public 
is  gone,  and  he  cannot  afterwards  devote  it  to  entirely  private 
purposes,  or  convey  it  to  others  in  fee  ;  ^  although  undoubt- 
edly he  might  continue  to  use  his  land  for  any  purpose  not  in- 
consistent with  the  public  use,  since  he  does  not  oixlinarily,  by 
dedication  merely,  lose  the  fee  of  the  soil.^     And  the  d^ica- 

1  See  17  Vin.  Abr.  256  ;  Commonwealth  v.  Low,  3  Pick.  408:;  Nudd  v, 
Hobbs,  17  N.  H.  525. 

2  See  Rugby  Charity  v.  Merry  weather,  11  East,  375;  Hobbs  v.  Lowell, 
19  Pick.  405;  Cincinnati  v.  White,  6  Pet.  431;  Pomeroy  u.  Mills,  3  Vt. 
279;  Gardiner  v,  Tisdale,  2  Wis.  153;  Connehan  v.  Ford,  9  Wis.  240; 
Scott  V.  The  State,  1  Sneed,  632;  Valentine  v.  Boston,  22  Pick.  75; 
Estes  V.  Troy,  5  Me.  368;  Taylor  v.  Boston  Water  Power  Co.  12  Gray, 
415. 

8  Poole  V.  Huskinson,  11  M.  &  W.  827;  Hemphill  v.  Boston,  8  Cush. 
197  ;  Stafford  v.  Coyney,  7  B.  &  C.  257;  Arnold  v.  Blaker,  L.  R.  6  Q.  B. 
433. 

4  Tyler  v.  Sturdy,  108  Mass.  196. 

5  See  Trustees  v.  Hoboken,  33  N.  J.  Law,  13;  Wilson  v.  Saxon,  27 
Iowa,  15;  Den  v.  Jersey  City,  Spencer,  107;  De  Witt  v.  Ithaca,  to  be  re- 
ported in  76  N.  Y. 

«  St.  Mary,  Newington,  v.  Jacobs,  L.  R.  7  Q.  B.  53;  Regina  v.  Pratt, 


182  ACQUISITION   OF   EASEMENTS. 

tion  need  not  be  formal,  or  in  writing  ;  any  acts  indicating 
an  intention  on  liis  part  to  dedicate  the  land  to  public  use, — 
the  existence  of  which  is  always  a  question  for  the  jury  ^  — 
are  sufficient.^  The  intention  to  dedicate,  however,  ought  to 
be  clearly  manifest,  in  order  to  deprive  a  landowner  of  his 
own  property.^  The  dedication,  then,  being  the  real  act  of 
the  owner  of  the  land,  no  length  of  time  or  of  user  is  neces- 
sar}^  as  in  prescription,  to  perfect  the  rights  of  the  public  in 
the  easement.^  But  to  make  a  dedication  complete  and  final, 
some  acceptance,  express  or  implied,  is  necessary  on  the  part 
of  the  public.  The  public  are  not  bound  to  accept  a  dedica- 
tion Avhich  is  offered,^  and  do  not  therefore  assume  any  liabil- 
ities or  duties  in  regard  to  the  property,  until  sufficiently  ac- 
cepted.^ And  therefore,  until  so  accepted,  either  formally  or 
by  actual  use  and  acquiescence,  the  dedication  may  be  re- 
voked by  the  donor,'^  afterwards  not.     This  acceptance  may 

4  El.  &  Bl.  868;  Dubuque  v.  Benson,  23  Iowa,  248;  Des  Moines  v.  Hall, 
24  Iowa,  234;  Lade  v.  Shepherd,  2  Str.  1004;  Covington  w.  Freking,  8 
Bush,  128. 

^  Or  perhaps  a  mixed  question  of  law  and  fact.  Cowles  v.  Gray,  14 
Iowa,  8. 

2  Bermondsey  v.  Brown,  L.  R.  1  Eq.  215  ;  Morse  v.  Ranno,  32  Vt.  606  ; 
Waugh  V.  Leech,  28  111.  492;  Green  v.  Canaan,  29  Conn.  172;  Hall  v. 
McLeod,  2  Mete.  (Ky.)  104;  Wright  v.  Tukey,  3  Cush.  290. 

8  See  Carpenter  v.  Gwynn,  35  Barb.  395;  Proctor  v.  Lewiston,  25  111. 
153;  Stacey  v.  Miller,  14  Mo.  478;  Gowen  v.  Phil.  Ex.  Co.  5  W.  &  Serg. 
141  ;  Tallniadge  v.  East  Ptiver  Bank,  26  N.  Y.  105  ;  Morse  v.  Ranno,  32 
Vt.  600.  And  must  be  made  by  the  owner  of  the  freehold.  Gentleman 
V.  Soule,  32  111.  272. 

*  Jarvis  v.  Dean,  3  Bing.  447;  Woodyer  v.  Hadden,  5  Taunt.  125  ;  Bis- 
sell  V.  N.  Y.  Central  R.  R.  Co.  26  Barb.  635 ;  State  v.  Atherton,  16  N.  H. 
211;  Child  v.  Chappell,  5  Seld.  246;  Rees  v.  Chicago,  38  111.  322;  Fisher 
V.  Beard,  32  Iowa,  346. 

6  Fisher  v.  Browse,  2  B.  &  S.  770;  Robbins  v.  Jones,  15  C.  B.  N.  S. 
221  ;  Greene  v.  Chelsea,  24  Pick.  71;   Gentleman  v.  Soule,  3*2  111.  271. 

«  Ilobbs  V.  Lowell,  19  Pick.  405;  Bowers  v.  Suflblk  Man.  Co.  4  Cush. 
332;  State  v.  Trask,  6  Vt.  355;  Dubuque  v.  Maloney,  9  Iowa,  455. 

^  San  Francisco  v.  Calderwood,  31  Cal.  585;  Lee  v.  Lake,  14  Mi(;h.  12; 
Baker  v.  Johnston,  21  Mich.  319  ;  Wilder  r.  St.  Paul,  12  Minn.  200  ;  Mun- 
son  V.  Hungerford,  6  Barb.  272;  Baker  v.  St.  Paul,  8  Minn.  494;  Becker 
t;.  St.  Charles,  37  Mo.  13.     A  permissive  use  of  a  way  hy  certain  particular 


ACQUISITION   UNDER   A   CUSTOM.  183 

be  oftentimes  proved  by  mere  enjoyment  by  the  public,  and 
then  no  length  of  time  for  the  enjoyment  is  absolutely  nec- 
essary, yet  of  course  the  duration  and  extent  of  the  enjoy- 
ment strengthen  the  proof  of  acceptance.  And  if  beneficial 
to  the  public,  and  no  dissent  or  reason  for  dissent  appears, 
the  acceptance  is  easily  presumed.^  Although  it  is  often 
said  that  the  public  acquire  rights  of  way,  &c.,  "  by  prescrip- 
tive use,"  perhaps  no  more  is  meant,  when  accurately  stated, 
than  that  the  public  by  long  use  prove  their  acceptance  of 
what  had  before  been  dedicated  by  the  landowner,  and  so 
the  right  of  the  public  becomes  complete  and  perfect  by  such 
long  use.  It  might  require  stronger  proof  of  acceptance  in 
order  to  render  a  town  liable  to  travellers  for  injuries  re- 
ceived upon  a  way,  than  to  authorize  the  public  to  travel  over 
it,  without  objection  by  the  owner.^  Indeed,  in  some  states, 
statutes  exist  declaring  that  towns  or  cities  shall  not  be  lia- 
ble for  injuries  received  on  ways  merely  dedicated  by  the 
landowners  to  public  use,  but  which  have  never  been  officially 
adopted  or  laid  out  by  the  public  authorities  ;  but  a  fuvtlier 
consideration  of  that  particular  subject  is  not  germane  to  the 
scope  of  this  work. 

ACQUISITION    OF   EASEMENTS    UNDER   A    CUSTOM. 

The  last  means  by  which  easements  may  be  acquired  is 
CUSTOM.  Some  remarks  have  already  been  made  on  this 
subject,''  on  which  occasion  it  was  explained  that  though  a 

portions  of  the  community  constitutes  only  a  license  and  not  a  dedication, 
and  is  revocable.  Stafford  v.  Coyney,  7  B.  &  C.  257;  Bermondsey  v- 
Brown,  L.  R.  1  Eq.  215. 

^  See  Guthrie  v.  New  Haven,  31  Conn.  321 ;  Holdane  v.  Trustees,  23 
Barb.  123  ;  Curtiss  v.  Hoyt,  19  Conn.  154;  Noyes  v.  Ward,  19  Conn.  265; 
Child  I'.  Chappell,  5  Seld.  256. 

2  See  Hjde  v.  Jamaica,  27  Vt.  443;  Blodgett  v.  Royalton,  14  Vt.  294; 
Paige  17.  Weathersfield,  13  Vt.  429;  Joliet  v.  Verley,  35  111.  58. 

»  See  anie,  chapter  I.  p.  18.  An  owner  of  a  close  can  alone  prescribe 
for  a  right  of  way  in  right  of  himself  and  his  predecessors,  owners  of  the 
inheritance.  A  claim  by  custom  in  the  parish  that  all  the  occupiers 
of  such  a  close  have  had  the  way  is  bad.  Baker  v.  Brereman,  Cro.  Car. 
418. 


184  ACQUISITION   OF   EASEMENTS. 

custom  and  an  easement  are  altogether  different,  yet  that 
there  can  be  a  custom  in  a  locality  under  and  by  virtue  of 
which  an  easement  may  be  acquired  by  an  owner  of  land  situ- 
ated in  the  locality  to  which  the  custom  belongs.  Some  in- 
stances of  easements  claimed  under  customs  were  also  men- 
tioned. 

It  may  be  remarked  that  an  easement  cannot  be  established 
Easements    ^'^^^^  ^J  pi'escription  and  under  a  custom  by  the  same 

claimed        evidence,  for  prescription  and  custom  are  different 

both  l)v         .  .  ^  ^  .      . 

prcscri'p-       in  theu'  characters.    A  prescriptive  and  a  customary 

umier"a  right  to  the  same  privilege  may  possibly  coexist  if 
custom.  each  be  distinctly  proved  by  proper  evidence,  but 
this  is  doubtful.  In  Blewett  v.  Tregonning,'*  it  was  said  that 
it  would  be  inconsistent  with  common  sense  to  say  that  the 
very  same  facts  could  prove  two  rights  of  a  completely  differ- 
ent nature,  such  as  that  of  one  taking  sand  by  prescription  to 
himself  and  his  ancestors  alone  in  respect  of  particular  lands, 
and  to  himself  in  common  with  his  brother  farmers  in  respect 
of  all  lands  in  the  parish  in  respect  of  which  the  prescription 
is  claimed,  and  also  to  himself  and  all  the  inhabitants  of  the 
county.  If  an  easement  is  claimed  both  by  prescription  and 
under  a  custom,  and  the  same  evidence  is  offered  to  establish 
each,  the  jury  must  consider  which,  if  either,  is  proved,  for 
they  cannot  find  in  favor  of  both.  But,  of  course,  different 
persons  may  have  a  right  of  way,  for  instance,  over  the  same 
land,  by  different  titles,  one  by  grant,  another  by  prescription, 
and  a  third  by  custom.  If  such  right  is  common  to  all  the 
inhabitants  of  a  manor,  district,  hundred,  parish,  town,  or 
county,  it  is  holden  as  a  custom.  If  it  is  limited  to  an  indi- 
vidual and  his  assigns,  to  a  private  corporation  or  its  succes- 
sor, or  is  attached  to  some  particular  estate,  and  exercised 
only  by  those  who  own  such  estate,  it  is  holden  as  a  prescrip- 
tive right,  and  is  then  either  personal  in  its  character,  or  is 
prescribed  in  a  gwe-estate.^ 

Claims  to  easements  by  custom  are  expressly  recognized  in 

•     *  3  A.  &  E.  at  p.  588. 

1  See  Perley  v.  Langley,  7  N.  H.  235;  Kent  v.  Waite,  10  Pick.  138. 


ACQUISITION   BY    GRANT.  185 

the  second  section  of  the  Prescription  Act,  in  which  it  is  said 
that  no  claim  which  may  be  lawfully  made  at  the    ^,  . 

•^  •'  Claims  by 

common  law  hy  custom  to  any  way,  &c.,  when  such    custom  un- 

Q6V  tnG 

way,  &c.,  shall  have  been  actually  enjoyed  for  Prescrip- 
twenty  years,  shall  be  defeated  by  showing  only  that 
such  way  or  other  matter  was  first  enjoyed  at  any  time  prior 
to  such  period  of  twenty  years.  It  is  difficult  to  see  what  is 
the  precise  effect  of  this  section  on  claims  to  easements  under 
a  custom,  for  if  a  claim  is  made  under  a  custom  alleged  to 
have  existed  from  time  immemorial,  the  claim  is  made  at  com- 
mon law,  and  the  Prescription  Act  does  not  preclude  ease- 
ments from  being  so  claimed  ; '  but  if  the  claim  be  made  un- 
der the  act,  a  claim  under  a  custom  is  in  every  way  similar  to 
a  claim  by  prescription.  Possibly,  however,  evidence  which 
would  be  insufficient  to  support  an  easement  claimed  by  pre- 
scription under  the  act  would  be  sufficient  if  it  was  alleged 
that  the  right  depended  upon  a  custom,  and  that  there  had 
been  actual  user  for  twenty  years. 

That  easements  claimed  by  custom  may  be  sustainable  in 
point  of  law,  they  must  be  possessed  of  the  same   Must  be 
characteristics  as  those  which  are  essential  for  the    and^c"r. 
validity  of  customs  generally.     Thus  they  must  be    tain. 
reasonable  and  certain.'^     For  this  reason  it  was  held  in  Jones 
V.  Percival,^  that  a  custom  for  the  inhabitants  of  a  certain 
place,   or    the    owners  of    a  certain    close,   to    pass   over  the 
soil  of  another  wherever  it  is  most  convenient  to  themselves, 
and   least   prejudicial  to   the  owner,  would   be  unreasonable 
and  void,  and  as  tending  to  contention  and  litigation.      So 
a  custom  in  the  inhabitants  of  a  city  to  erect  bay-windows, 
balconies,  and  other  structures  over  the  public  streets,  is  un- 

»  Holford  I'.  Hankinson,  5  Q.  B.  584. 

J  Broadbent  v.  Wilkes,  Willes,  360  ;  Hilton  v.  Earl  Granville,  5  Q.  B. 
701  ;  13  L.  J.  Q.  B.  193  ;  Wakefield  v.  Duke  of  Buccleuch,  L.  R.  4  Eq. 
613;  36  L.  J.  Ch.  763;  Blackett  v.  Bradley,  1  B.  &  S.  940;  31  L.  J.  Q.  B. 
65;  Carlyon  v.  Lovering,  1  H.  &  N.  784;  26  L.  J.  Exch.  251;  Rogers  v. 
Taylor,  1  H.  &  N.  706;  26  L.  J.  Exch.  203. 

15  Pick.  485.  And  see  Holmes  v.  Seeley,  19  Wend.  507;  Brice  v. 
Randall,  7  Gill  &  J.  349. 


186  ACQUISITION   OF   EASEMENTS. 

reasonable  and  unlawful.^  So  of  a  custom  to  take  fish  on  the 
land  of  another  from  an  unnavigable  stream  running  through 
the  same.2  So  of  a  custom  for  the  public  to  use  the  land  of 
another  on  a  navigable  river  as  a  landing-place,  and  place  of 
deposit  for  the  goods.^ 

Sect.  2.  —  On  Acquisition  of  Particular  Easements. 

The  first  section  of  this,  like  that  of  the  preceding  chapter, 
having  been  devoted  to  the  consideration  of  those  rules  of  law 
which  relate  to  easements  of  all  kinds,  it  is  the  purpose  of  this 
section,  to  treat  of  those  principles  which  have  exclusive  ref- 
erence to  the  acquisition  of  particular  sorts  of  easements  only. 
It  has  been  stated  that  natural  rights  are  incident  to  the  own- 
ership of  land,  and  are  not  created  or  acquired  by  any  act  of 
man,  but  that  all  easements  are  more  or  less  directly  referable 
to  a  grant  of  the  owner  of  the  servient  tenement,  either  ex- 
press or  implied.  In  the  following  pages,  therefore,  the  ac- 
quisition of  easements  as  distinguished  from  natural  rights  has 
alone  to  be  considered,  those  privileges  which  are  easements 
and  those  which  are  natural  rights  having  already  been 
pointed  out  in  the  preceding  chapter. 

AIR. 

It  has  been  explained  that  there  are  two  kinds  of  easements 
„     ...      in  connection  with  the  air  to  which  an  owner  of  land 

Two  kinds 

of  ease-        may  be  entitled,  and  that  they  are  rights  relating  to 
the  free  and  uninterrupted  passage  of  air,  and  rights 

relating  to  purity  of  air ;  it  has  also  been  pointed  out  which 

of  these  are  natural  rights,  and  which  are  easements. 

On  account  of  the  similitude  of  light  and  air  with  reference 
to  the  rules  of  law  respecting  the  passage  thereof  to 

ruptedflow    buildings  or  land,  they  were  considered  too;ether  in 

of  air.  ,  ^  .  1         ,  ,      ,  • 

the  previous  chapter,  and  the  same  course  is  now 

1  Codman  v.  Evans,  5  Allen,  310. 

2  Waters  v.  Lilley,  4  Pick.  145. 

8  Pearsall  v.  Post,  20  Wend.  Ill;  22  Wend.  42.5,  in  wliich  the  subject 
is  exhaustively  considered.     Talbott  v.  Grace,  30  Ind.  390. 


AIR.  187 

again  adopted,*  but  it  may  be  mentioned  here  that  a  right  to 
free  and  uninterrupted  passage  of  air  may  be  acquired  by 
grant,  express  or  implied,  or  by  prescription.  With  Piescrip- 
reference,  however,  to  the  power  of  acquiring  a  *^'^^  "^  ** 
right  to  uninterrupted  passage  of  air  by  prescription,  a  differ- 
ence exists  between  light  and  air.  It  will  be  shown,  when 
treating  of  light,  that  a  prescriptive  right  that  it  shall  not  be 
obstructed,  can,  at  the  present  day,  only  be  acquired  under 
the  Prescription  Act  —  special  provision  having  been  made  in 
that  statute  for  the  acquisition  of  rights  to  light  —  and  that, 
in  consequence  of  the  form  of  words  there  used,  rights  to 
light  cannot  be  acquired  now  by  prescription  at  common  law. 
With  reference  to  air,  however,  the  case  is  reverse,  Prescrip- 
for  no  provision  was  made  in  the  Prescription  Act  *^'°"  '^^' 
for  acquisition  of  rights  to  the  uninterrupted  flow  of  air,  and 
the  common  law  mode  of  gaining  such  a  right  still  remains, 
and  that  is,  consequently,  the  only  mode  by  which  a  prescrip- 
tive right  to  this  easement  can  be  acquired.  It  has  been  ques- 
tioned whether  a  right  to  uninterrupted  flow  of  air  is  not  an 
"  easement  "  within  the  meaning  of  the  second  section  of  the 
Prescription  Act,  but  it  was  held,  after  full  argument,  both  in 
the  Court  of  Common  Pleas  and  in  the  Exchequer  Chamber, 
that  it  was  not.'  There  can  be  no  doubt,  however,  that  a 
right  that  air  accustomed  to  flow  to  a  window  shall  not  be  ob- 
structed, may  be  acquired  by  prescription  at  com-  Common 
mon  law,  as  will  be  shown  hereafter  ;  but  this  being  ^^^' 
so,  the  somewhat  curious  case  of  Webb  v.  Bird,  already  re- 
ferred to,  arose,  in  which  the  action  was  brought  for  obstruct- 
ing the  wind,  which  was  accustomed  to  flow  to  a  windmill,  by 
erecting  a  building  ;  the  right,  it  was  held,  could  not  be  ac- 
quired by  prescription  under  the  statute,  as  the  act  does  not 
apply  to  that  sort  of  easement,  and  it  was  impossible,  more- 
over, to  presume  a  grant  from  long  user,  for  there  was  no  rea- 
sonable means  by  which  enjoyment  of  the  flow  of  the  wind 
could  have  been  interrupted  ;  it  follows  for  the  same  reason, 

*-■  See  post,  "  Light,"  p.  189. 

2  Webb  V.  Bird,  10  C.  B.  N.  S.  268;  30  L.  J.  C.  P.  384 ;  In  Exch.  Cham. 
13  C.  B.  N.  S.  841 ;  31  L.  J.  C.  P.  335.      See  ante. 


188  ACQUISITION   OF   EASEMENTS. 

tluit  the  I'iglit  could  not  be  acquired  by  prescription  at  com- 
mon law. 

In  entire  harmony  with  Webb  v.  Bird,  it  has  recently  been 
held  in  the  Court  of  Appeal,  that  one  owner  does  not  acquire, 
by  a  use  or  enjoyment  of  more  than  twenty  years,  any  right 
to  a  free  and  unobstructed  flow  of  air  across  his  chimneys,  and 
that  the  adjoining  owner  might  lawfully  raise  his  house  an- 
other story,  or  pile  timber  on  the  top  of  it,  so  as  to  cause  the 
other's  chimneys  to  smoke.  And  Bramwell,  L.  J.,  remarked, 
"  It  may  be  said  the  reasoning  by  which  this  conclusion  is 
reached,  if  correct,  is  applicable  to  lights.  So  it  is  to  a  great 
extent ;  and  any  one  who  reads  the  cases  relating  to  the  ac- 
quisition of  a  right  to  light,  will  see  there  has  been  great  diffi- 
culty in  establishing  it  on  principle."  ^ 

Purity  of  air,  as  has  been  explained,  is  a  natural  right,  but 
Riffhtto  iw  opposition  to  this  a  right  may  be  acquired  .by  a 
pollute  air.  l^mdowner  to  pollute  the  air  which  flows  to  the  land 
of  a  neighbor.  This  easement  may  be  acquired  by  grant,  ex- 
press or  implied,  or  by  prescription. 

Express  grants  of  this  kind  are  not  of  very  common  occur- 
rence, but  as  a  vendor  of  a  house  with  windows  over- 
prant  of  lookiug  his  land  impliedly  grants  to  the  purchaser 
"^   '  a  right  to  light,  so  it  would  probably  be  held  that  a 

vendor  of  a  factory  impliedly  grants  a  right  to  the  purchaser 
to  pollute  the  air,  when  necessary  and  unavoidable,  with  the 
smoke  and  vapors  from  the  factory.  The  vendor  could,  of 
course,  onl}^  grant  such  a  right  as  against  himself,  so  as  to 
pi-eclude  himself  from  suing  for  the  nuisance  created,  he  could 
not  impose  such  a  burden  on  his  neighbors."* 

When  the  air  which  passes  to  a  person's  house  or  land  has 
Prescrip-  been  habitually  polluted  by  smoke,  or  otherwise,  for 
tive  right,  twenty  years,  a  right  may  be  acquired  against  that 
person  to  continue  the  nuisance.     Thus  it  was  said  by  Lord 

1  Bryant  v.  Lefever,  4  C.  P.  D.  172;  27  W.  R.  612  (1879).  And  see 
Roberts  v.  Macord,  1  Moo.  &  Rob.  230. 

"•  TippinfT  V.  St.  Helen's  Smelting  Company,  L.  R.  1  Cli.  App.,  per  Sir 
W.  Paige  Wood,  V.  C,  at  p.  67. 


LIGHT.  189 

Romilly,  M.  R.,  in  the  case  of  Crump  v.  Lambert,''  "  There 
is,  I  apprehend,  no  distinction  between  any  of  the  cases, 
whether  it  be  smoke,  smell,  noise,  vapor,  or  water,  or  any 
other  gas  or  fluid.  The  owner  of  one  tenement  cannot  cause 
or  permit  to  pass  over  or  flow  into  his  neighbor's  tenement, 
any  one  or  more  of  these  things  in  such  a  way  as  materially 
to  interfere  with  the  ordinary  comfort  of  the  occupier  of  the 
neighboring  tenement,  or  so  as  to  injure  his  property.  It  is 
true  that,  by  lapse  of  time,  if  the  owner  of  the  adjoining  ten- 
ement, which,  in  case  of  light  or  water,  is  usually  called  the 
servient  tenement,  has  not  resisted  for  a  period  of  twenty 
years,  then  the  owner  of  the  dominant  has  acquired  the  right 
of  discharging  the  gases  or  the  fluid,  or  sending  smoke  or 
noise  from  his  tenement  over  the  tenement  of  his  neighbor  ; 
but  until  that  time  has  elapsed,  the  owner  of  the  adjoining  or 
neighboring  tenement,  whether  he  has  or  has  not  previously 
occupied  it,  —  in  other  words,  whether  he  comes  to  the  nui- 
sance, or  the  nuisance  comes  to  him,  — retains  his  right  to  have 
the  air  that  passes  over  his  land  pure  and  unpolluted,  and  the 
soil  and  produce  of  it  uninjured  by  the  passage  of  gases,  by 
the  deposit  of  deleterious  substances,  or  by  the  flow  of  water," 

LIGHT. 

The  consideration  of  the  means  of  acquiring  rights  to  un- 
interrupted flow  of  air,  was,  on  account  of  the  sim-    Acquisi- 
ilarity  of  light  and  air  in  this  respect,  postponed  to   ri^huoun- 
this  place,  that  the  two  subjects  might  be  treated  to-   ;;itei'™pted 

r  ^  J  t)  light  and 

gether.  It  has  been  explained  that  every  man  has  a  air. 
natural  right  to  use  and  enjoy  the  light  and  air  which  natur- 
ally come  to  him,  in  any  way  he  thinks  proper,  provided  he 
does  not  cause  unjustifiable  damage  to  other  persons  by  his 
mode  of  using  them,  but  that  this  natural  right,  differing  from 
the  natural  right  to  the  flow  of  water,  is  subordinate  to  the 
right,  incident  .to  property,  which  every  person  has  to  build 
on  his  own  land.  Every  landowner  has  perfect  right  to  build 
on  his  own  ground,  though  he  thereby  obstructs  his  neighbor's 

«  L.  R.  3  Eq.  at  p.  413;  Bliss  v.  Hall,  4  Bing.  N.  C.  183 ;  7  L.  J.  N.  S. 
C.  P.  122;  Flight  v.  Thomas,  10  A.  &  E.  590  ;  8  L.  J.  N.  S.  Q.  B.  337. 


190  ACQUISITION   OF   EASEMENTS. 

light  and  air,  unless  his  neighbor  has  acquired  a  right  against 
him  that  his  light  and  air  shall  not  be  obstructed.^  This  ease- 
ment of  right  to  uninterrupted  light  and  air  may  be  acquired, 
like  other  easements,  by  express  grant,  or  in  England  by  one 
implied,  or  by  prescription. 

Before  explaining  the  circumstances  under  which  a  grant  of 
No  prant  right  to  light  and  air  will  be  implied  from  the  acts  of 
from  suf-  parties,  it  may  be  well  to  point  out  that  no  grant  of 
feringwin-   I'iorht  to  Uninterrupted   li^-ht  and  air  can  be  implied 

dews  to  be        ^  .  „. 

opened.  from  the  circumstance  that  a  landowner  suffers 
another  person  to  open  new  windows  overlooking  his  land 
without  objection  or  resistance.  The  fullest  knowledge  with 
entire,  but  mere  acquiescence,  cannot  bind  a  party  who  has 
no  means  of  resistance,  and  there  is  no  means  of  resisting  the 
opening  of  a  new  window  by  the  owner  of  a  house ;  the  owner 
of  a  house  has  a  perfectly  legal  right  to  open  any  windows  he 
thinks  proper,  and  no  action  will  lie  for  that  act,  or  for  the 
disturbance  of  the  adjoining  landowner's  privacy.  There 
may  seem  to  be  some  hardship  that  a  landowner  who  has 
stood  by  without  taking  any  notice  or  uttering  a  remonstrance 
while  his  neighbor  has  incurred  expense  in  building,  should  be 
at  liberty  afterwards  to  build  in  front  of  the  windows  and 
destroy  the  comfort  of  the  house  ;  but  he  is  entitled  to  do  so, 
and  with  good  reason,  for  it  is  far  more  just  and  convenient 
that  the  party  who  seeks  to  add  to  the  enjoyment  of  his  own 
land  by  getting  anything  in  the  nature  of  an  easement,  should 
be  obliged  first  to  secure  the  right  to  it  by  some  unambiguous 
and  well  understood  grant  from  the  landowner,  who  thereby 
may  know  the  nature  and  extent  of  his  grant,  and  can  grant 
or  withhold  it  as  he  pleases,  or  grant  it  on  such  terms  as  he 
thinks  fit  to  impose,  than  that  such  a  right  should  be  acquired 
against  him,  almost  without  his  cognizance,  and  in  such  an 
uncertain  manner.^ 

Questions  of  implied  grants  of  right  to  light  and  air  gen- 

o  Tapling  v.  Jones,   11   H.  L.  C.  290;  34  L.  J.   C  P.  344;  Mahan  v. 
Brown,  13  Wend.  261  ;  Guest  v.  Reynolds,  68  111.  478. 
p  Blanchard  v.  Bridges,  4  A.  &  E.  176;  5  L.  J.  N.  S.  K.  B.  78. 


LIGHT.  191 

erally  arise  when  persons  who  own  houses  and  adjoining  land 
sever  the  property  by  selling  either  the  houses   or 
the  land,  or  by  disposing  of  both  at  the  same  time   srant  is 
to  different  persons.  ""'^  '^ 

It  is  not  in  every  case  of  severance  of  houses  and  land  that 
a  grant  of  a  right  to  light  can  be  implied.     To  take 
the  above  three  cases  in  succession,  if  a  man  sells  a   house  re- 
house which  has  windows  overlooking  adjoining  land   joinh"g  ^ 
which  he  retains,  he  cannot  afterwards  stop  the  light   ^'^"'^' 
from  coming  to  the  windows  of  the  house  by  building  on  the 
land  ;  for,  when  granting  the  house,  he  is  presumed  to  have 
granted  also  a  right  to  light  to  the  windows,  and  he  may  not 
subsequently  derogate  from  his  own  grant ;  so,  also,  if  after 
selling  the  house  he  sells  the  land  to  a  third  person,  the  latter 
may  not  obstruct  the  light  from  the  windows,  for  the  vendor 
could   only  convey  the   land  subject  to  the  same  burdens  to 
which  it  was  subject  in  his  own  hands. ^     In  a  case,  however, 
where  the  grantor  of  a  lease  of  a  house  for  twenty-one  years 
was  himself  lessee  for  four  years  of  some  neighboring  prem- 
ises which  were  so  low  in  construction  that  they  did  not  pre- 
vent the  light  coming  to  the  windows  of  the  house,  and  he  sub- 
sequently purchased  the  low  buildings  in  fee,  it  was  held  that 
'the  implied  grant  of  right  to  light  was  limited  to  the  term  the 
grantor  had  in  the  low  buildings  at  the  date  of  the  lease  of 
the  house,  that  is,  the  four  years,  and  that  the  fact  of  the  sub- 
sequent purchase  of  the  freehold  estate  in  fee  in  the  low  build- 
ings did  not  extend  the  implied  grant  of  right  to  the    gale  of 
longer  term.'"     If,  on  the  contrary,  the  owner  of  a    ''*"'l'"«'- 
house  and  land  sells  the  land  and  keeps  the  house,    iiouse. 
there  is  no  such  grant  by  the  purchaser  of  the  land  implied  ; 
for,  if  the  conveyance  is  absolute,  and  without  any  reserva- 
tion of  easements,  there  is  no  ground  for  presuming  an  inten- 
tion that  a  right  to  light  should  be  reserved  by  the  vendor  or 

1  Coiitts  V.  Gorham,  Moo.  &  Mai.  396;  Cox  v.  Matthews,  1  Vent.  239; 
Palmer  v.  Fletcher,  1  Lev.  122;  Sir  T.  Raym.  87;  Palmer  v.  Paul,  2  L.  J. 
Ch.  154;  Kobinson  v.  Grave,  L.  R.  Weekly  Notes,  1873,  p.  83. 

»•  Booth  V.  Alcock,  L.  E,.  8  Ch.  App.  663;  42  L.  J.  Ch.  557. 


192  ACQUISITION   OF   EASEMENTS. 

gnmted  by  the  purchaser/  If  the  house  and  land  are  sold 
Sale  of  simultaneously  to  different  persons,  the  case  is  similar 
house  and     ^         g^|g  ^f  ^jjg  house  when  the  land  is  reserved  ; 

land  siimil-  _  _  ' 

taueously.  for  the  vendor  is  presumed  to  grant  a  right  to  light 
to  the  purchaser  of  the  house,  and  the  purchaser  of  the  land 
takes  it  subject  to  the  restriction  that  he  may  not  build  so  as 
to  obstruct  the  light.' 

THE    AMERICAN    LAW. 

How  generally  the  American  courts  deny  the  acquisition 
of  a  right  to  light  and  air  by  prescription,  as  allowed  in  Eng- 
land, is  shown  hereafter ;  but  on  the  point  of  an  implied 
grant,  they  are  much  divided.  Four  different  views  seem  to 
prevail.  The  first  is  that  upon  the  severance  of  a  tenement, 
a  right  to  light  and  air  is  generally  implied  in  favor  of  the 
grantee  over  the  remaining  land  of  the  grantor,  and  appar- 
ently without  reference  to  the  question  of  its  actual  neces- 
sity for  the  full  enjoyment  of  the  estate  granted.  The  second 
is  that  such  right  is  implied  only  when  it  is  actually  neces- 
sary, and  not  where  it  is  only  convenient,  though  highly  so,  to 
the  purchaser.  Third,  that  such  right  is  never  implied,  how- 
ever necessary  to  the  enjoyment  of  the  estate  purchased. 
Fourth,  that  such  right  is  never  impliedl}'-  reserved  in  favor* 
of  a  grantor,  as  against  an  absolute  and  unconditional  grantee, 
free  from  incumbrances,  even  if  under  similar  circumstances 
it  might  be  implied  in  favor  of  a  grantee  against  his  grantor. 

1.  The  right  is  sometimes  implied  without  much  apparent 
stress  upon  its  necessity  to  the  estate  granted. 

The  earliest  reported  case  on  this  point  is  Story  v.  Odin,^ 
which,  though  subsequently  shaken  if  not  overruled  in  its  own 

»  "White  V.  Bass,  7  H.  &  N.  722;  31  L.  J.  Exch.  283  ;  Curriers'  Co.  v. 
Corbett,  2  Dr.  &  Sm.  355;  Ellis  i-.  The  Manchester  Carriage  Co.  (Lim- 
ited), 2  C.  P.  D.  13. 

'Palmer  v.  Fletcher,  1  Lev.  122;  Compton  v.  Richanls,  1  Price,  27; 
Swanborouj];h  v.  Coventry,  9  Bing.  305;  2  L.  J.  N.  S.  C.  P.  11.  In  Swan- 
borough  V.  Coventry,  9  Bing.  305,  the  land  was  conveyed  "  with  all  the 
lujhts,  easements,  rights,  and  privileges,"  &c.,  and  the  decision  was  placed 
upon  the  ground  of  an  express,  and  not  a  mere  implied  grant. 

1  12  Mass.  157. 
4 


LIGHT. .  193 

state,  has  yet  been  so  often  approved  and  followed  elsewhere, 
that  an  impartial  consideration  of  the  authorities  seems  to  re- 
quire its  consideration  as  a  leading  case  on  this  side  of  the  ques- 
tion. In  that  case  Story  bought,  in  1795,  a  lot  of  land  of  the 
town  of  Boston,  situated  in  Dock  Square,  with  a  store  upon  it, 
having  a  door  and  two  or  three  windows  looking  out  over  the 
adjacent  vacant  lot  also  owned  by  the  town,  and  which  the 
town  subsequently,  in  1812,  sold  to  Odin,  who  erected  a 
building  upon  it,  covering  the  whole  ground,  and  adjoining 
ike  back  wall  of  the  store,  and  thus  obstructed  the  light  and 
air  thereto.  The  deed  to  S.  was  with  all  the  privileges  and 
appurtenances,  and  without  any  exception  or  reservation  of  a 
right  to  build  on  the  adjoining  lot,  or  to  stop  the  lights  in  the 
store  so  sold.  It  was  held  •to  be  "  clear  that  the  grantors 
themselves  could  not  afterwards  lawfully  stop  those  lights,  and 
thus  defeat  or  impair  their  own  grant ;  and  as  they  could  not 
do  this  themselves,  so  neither  could  they  convey  a  right  to  do 
it  to  a  stranger."     And  a  verdict  for  S.  was  sustained. 

This  case  has  not  only  been  often  cited  with  apparent  ap- 
probation in  the  same  state, ^  but  also  by  such  distinguished 
judges  elsewhere,  as  Story,  Selden,  and  others.^ 

Next  after  Story  v.  Odin,  and  much  relying  upon  it,  came 
^Robeson  v.  Pittenger,^  in  the  Court  of  Chancery  of  New  Jer- 
sey in  1838.  There  S.  owning  two  lots,  built  a  dwelling-house 
on  one  "  immediately  on  the  line  of  "  the  other,  with  six  win- 
dows, which  opened  and  received  light  and  air  from  the  other. 
The  house  came  into  the  possession  of  the  plaintiff,  and  the 
other  lot  into  that  of  the  defendant,  who  purposed  to  erect  a 
building  thereon  which  would  darken  the  plaintiff's  windows. 
The  plaintiff  obtained  an  injunction  against  the  same,  partly 
upon  the  ground  that  the  windows  had  existed  for  more  than 
twenty  years,  and  partly  because  "  the  adjoining  lot  was 
owned  by  the  man  who  built  the  house  and  subsequently  sold 
it  to  the  plaintiff." 

1  See  Grant  v.  Chase,  17  Mass.  448. 

2  See  United  States  v.  Appleton,  1  Sumn.  503;  Lampman  v.  Milks,  21 
N.  Y.  513. 

3  1  Green  Ch.  57. 

13 


194  ACQUISITION   OF  EASEMENTS. 

But  the  most  direct,  and  apparently  the  best  considered  re- 
cent American  authority  upon  this  side  of  the  question  is  that 
of  Janes  v.  Jenkins.^  In  this  case  A.,  the  owner  of  two  ad- 
joining lots,  called  the  east  and  west  lots,  leased  the  east  lot 
for  ninety-nine  years,  with  a  covenant  that  the  lessee  might 
make  openings,  and  place  lights  in  the  wall  which  he  contem- 
plated erecting  on  .the  west  line  of  said  lot.  The  wall  was 
erected  and  lights  placed  in  it  overlooking  the  west  lot,  which 
A.  subsequently  conveyed  to  B.  Subsequently  to  the  erec- 
tion of  the  wall,  and  the  last  deed  to  B.,  A.  sold  the  east  lot 
to  C,  by  a  deed  containing  this  clause  :  with,  "  all  and  every 
the  rights,  alleys,  ways,  waters,  privileges,  appurtenances  and 
advantages  to  the  same  belonging,  or  in  any  wise  appertain- 
ing." The  deed  of  the  west  lot  to  B.  contained  a  special  cov- 
enant of  warranty,  and  in  an  action  thereon  for  an  alleged 
breach  by  reason  of  the  existence  of  the  wall  on  the  east  lot, 
overlooking  the  other,  whereby  the  grantee  was  prevented 
from  building  on  the  same,  it  was  directly  held  that  the  owner 
of  the  east  lot  had  acquired  by  his  grant  a  right  to  maintain 
the  wall  and  windows,  and  overlook  the  other  lot ;  and  the 
case  of  Story  v.  Odin  was  cited  and  approved.  Perhaps  the 
peculiar  phraseology  of  the  grant  in  this  case  may  have  aided 
in  arriving  at  the  conclusion,  but  the  court  seem  to  fully 
adopt  the  broad  English  doctrine. 

The  English  rule  seems  also  to  prevail  in  Louisiana  ;  ^  but 
this  may  be  expressly  secured  by  the  civil  code  there  prevail- 
ing.    See  especially  articles  707,  711,  712,  713. 

2.  The  second  view  is  that  such  implied  grant  exists,  where 
the  existing  light  and  air  is  substantially  necessary  for  the  en- 
joyment of  the  house  or  building  conveyed,  but  not  where  it 
is  only  convenient. 

On  this  subject  Judge  Washburn,  after  a  review  of  several 
authorities,  says  :  ^  "So  far  as  weight  of  authority,  both  Eng- 
lish and  American,  goes,  it  would  seem  that  if  one  sell  a 
house,    the    light    necessary   for   the   reasonable    enjoyment 

1  34  Md.  1  (1870). 

2  Durel  V.  Boisblanc,  1  La.  Ann.  407  (1846). 

'  Wash,  on  Easements,  chapter  IV.  sec.  6,  p.  618. 


LIGHT.  195 

whereof  is  derived  from  and  across  adjoining  land,  then  be- 
longing to  the  same  owner,  the  easement  of  light  and  air  over 
such  vacant  lot  would  pass  as  incident  to  the  dwelling-house, 
because  necessary  to  the  enjoyment  thereof ;  but  that  the  law 
would  not  carry  the  doctrine  to  the  securing  of  such  easement, 
as  a  mere  convenience  to  the  granted  premises." 

It  may  be  that  the  above  is  a  just  and  reasonable  rule,  and 
ought  to  prevail ;  but  it  is  not  easy  to  see  that  it  is  positively 
determined  by  the  authorities  referred  to  by  the  learned  au- 
thor. It  has,  however,  some  supposed  analogies  to  support  it, 
and  it  has  recently  been  cited  and  approved  in  several  cases. 
It  was  quoted  with  approbation  in  Turner  v.  Thompson,^  al- 
though that  state  denies  the  doctrine  of  any  jorescriptive  right 
to  light  and  air.^ 

In  like  manner,  in  Powell  v.  Sims,^  it  was  held  that  an  im- 
plied grant  of  an  easement  of  lights  will  be  sustained  only  in 
cases  of  real  and  obvious  necessity  ;  and  will  be  rejected  when 
the  person  claiming  the  same  can,  at  a  reasonable  cost,  sub- 
stitute other  lights  to  his  building ;  each  case  being  deter- 
mined on  its  own  facts  as  to  the  degree  of  necessity  requisite 
for  a  foundation  of  the  rights. 

So,  also,  in  White  v.  Bradley,^  it  seems  to  have  been  im- 
pliedly admitted  that  there  may  be  cases  falling  under  Judge 
Washburn's  rule  of  necessity,  though  that  particular  case  was 
decided  against  the  right,  on  the  ground  that  it  was  a  "  mere 
convenience"  to  the  granted  premises. 

3.  The  right  is  never  implied.  There  is  certainly  some 
room  for  argument  that  if  light  is  absolutely  necessary  to  en- 
joy the  estate  granted,  a  right  to  its  free  passage  might  be  im- 
plied, in  the  same  manner  as  a  right  of  way  arises  where  no 
other  means  of  access  exist  to  the  estate  conveyed;  but  the 
current  of  modern  authorities  seems  to  set  against  applying 
this  analogy  to  light  and  air  ;  especially  in  those  states  which 
repudiate  the  English  doctrine  of  a  prescriptive  right  of  light. 

1  58  Ga.  268  (1877). 

2  Mitchell  V.  Rome,  49  Ga.  19. 
8  5  W.  Va.  1  (1871). 

4  6G  Me.  263  (1876). 


196  ACQUISITION   OF  EASEMENTS. 

One  of  the  most  striking  illustrations  of  this  view  may  be 
found  in  the  recent  elaborately  considered  case  of  Keats  v. 
Hugo.^  The  defendant  had  sold  the  plaintiff  a  dwelling- 
house,  by  a  warranty  deed,  with  all  the  "  privileges  and  ap- 
purtenances." The  house  stood  on  the  line  adjoining  other 
vacant  land  of  the  defendant,  with  a  door  and  windows  on 
that  side.  After  the  conveyance  the  defendant  erected  a 
structure  and  woodshed  on  his  vacant  lot  against  the  dwell- 
ing-house, and  tvithin  about  eight  inches  of  the  same.  The 
plaintiff  brought  an  action  for  obstructing  his  right  to  light 
and  air,  and  the  question  of  an  implied  grant  was  the  only 
point  involved  in  the  case.  Two  other  cases  involving  simi- 
lar questions  between  other  parties  were  also  argued  by  em- 
inent counsel,  and  the  whole  were  carefully  considered  to- 
gether, and  the  same  result  reached  in  each  by  the  whole 
court.  Chief  Justice  Gray,  in  an  elaborate  review  of  the  au- 
thorities, establishes,  first,  that  in  that  state  no  right  of  light 
and  air  could  be  obtained  by  prescription  ;  and  second,  that 
the  same  considerations  lead  to  the  position  that  the  doctrine 
of  implied  grant  (which  is  there  recognized  in  some  other 
easements),  does  not  apply  to  this  claim.  "  By  nature,"  he 
says,  "  light  and  air  do  not  flow  in  definite  channels,  but  are 
universally  diffused.  The  supposed  necessity  for  their  pas- 
sage in  a  particular  line  or  direction  to  any  lot  of  land,  is  cre- 
ated not  by  the  relative  situation  of  that  lot  to  the  surround- 
ing lands,  but  b}'-  the  manner  in  which  that  lot  has  been  built 
upon.  The  actual  enjoyment  of  the  air  and  light  by  the 
•owner  of  the  house  is  upon  his  own  land  only.  He  makes  no 
tangible  or  visible  use  of  the  adjoining  lands,  nor  indeed  any 
use  of  them,  which  can  be  made  the  subject  of  an  action  by 
their  owner,  or  which  in  any  way  interferes  with  the  latter's 
enjoyment  of  the  light  and  air  upon  his  own  lands,  or  with 
any  use  of  those  lands  in  their  existing  condition.  In  short, 
the  owner  of  the  adjoining  lands  has  submitted  to  nothing 
which  actually  encroached  upon  his  rights,  and  cannot,  there- 
fore, be  presumed  to  have  assented  to  any  such  encroachment. 
The  use  and  enjoyment  of  the  adjoining  land  are  certainly 
1  115  Mass.  204  (1874). 


LIGHT.  197 

no  more  subordinate  to  those  of  the  house  where  both  are 
owned  by  one  man,  than  where  the  owners  are  different. 
The  reasons  upon  which  it  has  been  held  that  no  grant  of  a 
right  to  air  and  light  can  be  implied  from  any  length  of  con- 
tinuous enjoyment,  are  equally  strong  against  implying  a 
grant  of  such  a  right  from  the  mere  conveyance  of  a  house 
with  windows  overlooking  the  house  of  the  grantor.  To  im- 
ply the  grant  of  such  a  right  in  either  case,  without  express 
words,  would  greatly  embarrass  the  improvement  of  estates, 
and,  by  reason  of  the  very  indefinite  character  of  the  right  as- 
serted, promote  litigation.  The  simplest  rule,  and  that  best 
suited  to  a  country  like  ours,  in  which  changes  are  continu- 
ally taking  place  in  the  ownership  and  the  use  of  lands,  is 
that  no  right  of  this  character  can  be  acquired  without  ex- 
press grant  of  an  interest  in  or  covenant  relating  to  the  lands 
over  which  the  right  is  claimed." 

Story  V.  Odin  was  criticised  and  distinguished,  but  was  not 
expressly  declared  to  be  overruled,  as  apparently  it  might 
safely  have  been. 

The  courts  of  New  York  also  deny  the  doctrine  of  an  im- 
plied grant,  especially  between  lessor  and  lessee ;  and  they 
allow  a  landlord  who  owns  land  adjoining  the  demised  prem- 
ises to  build  upon  it,  even  though  thereby  he  seriously  dark- 
ens the  light  in  the  buildings  leased  ;  ^  Ohio  is  to  the  same 
effect,^    even  if  the   use  of  the   windows    be  actually   neces- 

1  Palmer  v.  Wetmore,  2  Sandf.  316  (1849);  Myers  v.  Gemmel,  10  Barb. 
537  (1851).  In  Doyle  v.  Lord,  64  N.  Y.  432  (1876),  the  owner  of  a  build- 
ing having  several  tenants,  with  a  vacant  yard  in  the  rear,  which  the 
windows  of  the  building  overlooked,  and  on  which  were  outbuildings  for 
the  use  of  the  various  tenants,  leased  one  portion  of  the  building  to  the 
plaintiff  "  with  the  appurtenances; "  but  the  lessor  afterwards  leased  the 
whole  premises  to  the  defendant,  subject  to  the  plaintiff's  lease,  and  the 
defendant  attempted  to  erect  buildings  on  the  vacant  lots  which  would  ob- 
struct the  light  and  air  coming  in  at  the  back  windows,  and  also  access  to 
the  outbuilding.  Held,  that  the  defendants  had  no  right  to  darken  the 
windows,  and  that  a  right  to  light  and  air  passed  to  the  plaintiff  under  the 
lease,  as  one  of  the  "  appurtenances,"  but  without  intending  to  depart  from 
the  American  doctrine  of  light  and  air.  See,  also,  Shipman  v.  Beers,  2 
Abb.  N.  C.  435  (1877). 

1M...1LU  V.  Strieker,  19  Ohio  St.  135  (1869). 


198  ACQUISITION   OF   EASEMENTS. 

sary  for  the  estate  granted  ;  and  Pennsylvania  inclines  the 
same  way.^  Indiana,  in  Keiper  v.  Klein,^  in  an  elaborate 
opinion,  adopted  the  same  rule. 

4.  Even  if  the  doctrine  of  an  implied  grant  be  applied  in 
favor  of  a  grantee^  there  is  much  less  reason  to  apply  it  in 
favor  of  the  grantor^  and  it  may  be  safely  asserted  that  no- 
where, in  England  or  America,  can  a  grantor  who  has  sold  a 
vacant  lot  without  restriction  or  reservation,  having  his  dwell- 
ing-house adjoining,  retain  any  implied  right  to  prevent  his 
grantee  from  erecting  any  building  or  structure  on  the  land 
granted,  even  though  it  should  interfere  with  lights  and  win- 
dows of  his  own  house.  The  contrary  rule  would  clearly  der- 
ogate from  his  grant,  since  he  conveys  a  fee  unrestricted,  and 
cujus  est  solum  ejus  est  ad  coelum. 

This  was  the  point  really  involved  in  the  elaborate  and 
well-considered  case  of  Morrison  v.  Marquardt,^  although  the 
court  inclined  to  apply  the  same  rule  conversely,  certainly  un- 
less it  be  clear  from  the  deed  that  the  parties  intended  dif- 
erently. 

And  this  is  undoubtedly  the  English  law  :  the  grantee,  in 
the  case  of  an  absolute  conveyance,  has  a  right  to  use  the 
land  in  any  lawful  way,  for  if  the  grantor  fear  an  injury  to 
his  lights  and  air,  he  should  make  a  restriction  in  the  deed  of 
conveyance.^ 

Tliis  point  was  more  fully  considered  in  the  late  case  of 
Ellis  V.  The  Manchester  Carriage  Company.^  There  the 
plaintiff,  in  1867,  bought  nine  houses  in  Manchester,  the  rear 
of  which  abutted  on  a  street  or  way,  on  the  opposite  side  of 
which  were  certain  cottages.  In  1868  he  bought  the  cottages 
also,  but  by  a  different  title.  Both  estates  had  existed  in  their 
then  condition  for  over  twenty  years.  In  1870  the  plaintiff 
sold  the  cottages  to  D.,  without  any  i-eservation,  who  after- 

1  Maynard  v.  Esher,  17  Penn.  St.  222  (1851)  ;  33  lb.  371. 
251  Ind.  316  (1875). 
«  24  Iowa,  35  (1867). 

*  Tenant  v.   Goodwin,  2  Ld.  Rayra.   1089,  Ld.  Holt;  White  v.  Bass,  7 
H.  &  N.  722  (18G2);  Currier's  Co.  v.  Corbett,  2  Dr.  &  Sm.  355  (1865). 
6  2  C.  P.  D.  13  (1876). 


LIGHT.  199 

wards  conveyed  to  the  defendants  ;  they  pulled  down  the  cot- 
tages and  erected  a  large  building  upon  the  site,  and  also  upon 
a  portion  of  the  intervening  street  or  way,  and  so  obstructed 
the  plaintiff's  windows.  It  was  held,  that  although  the  plain- 
tiff's houses  had  acquired  an  "  absolute  and  indefeasible  " 
right  to  light,  under  Stat.  2  &  3  Wm.  IV.  c.  71,  s.  3,  the  de- 
fendants were  not  guilty  of  any  wrongful  obstruction  of  the 
plaintiff's  lights,  since  his  own  deed  to  D.  was  without  any 
reservation.^ 

Hence  it  will  be  seen  that,  in  America,  although  in  cases  of 
some  easements,  such  as  a  right  of  way,  an  implied  reserva- 
tion exists  in  favor  of  the  grantor  over  or  upon  the  land 
granted,  when  reasonably  necessary  for  the  use  of  the  estate 
retained ;  this  doctrine  is  not  applied  to  an  easement  of  light 
and  air  even  by  those  American  courts  which,  as  in  England, 
most  firmly  support  such  right  in  favor  of  a  grantee  against 
his  grantor,  under  like  circumstances. 

This  question  has  also  been  elaborately  considered  in  Eng- 
land, in  a  recent  case,  before  Vice  Chancellor  Bacon,  and  in 
the  Court  of  Appeal,  and  it  was  distinctly  held,  after  a  care- 
ful review  of  the  cases,  that  when  a  persons  owns  two  lots, 
one  vacant  and  one  containing  buildings  with  windows  over- 
looking the  other,  and  sells  the  former,  the  conveyance  con- 
taining no  express  reservation  of  rights  of  light,  he  does  not 
retain  any  implied  right  to  continue  to  have  the  light  enter 
his  windows,  or  to  prevent  his  grantee  from  building  on  the 
vacant  lot ;  certainly  not,  if  the  same  is  not  actually  neces- 
sary ;  and  having  retained  no  such  right  he  cannot  convey  it 
to  a  subsequent  grantee  of  the  land  and  buildings.^ 

As  to  simultaneous  conveyances ;  the  American  doctrine  is 
that  if  neither  grantor  nor  grantee  are  estopped  from  obstruct- 
ing each  other's  lights,  there  is  no  reason  why  either  of  two 
simultaneous  grantees  from  the  same  grantor  should  be ;  and 
this  is  abundantly  settled  in  the  American  courts. 

1  And  see  Warner  v.  McBryde,  36  L.  T.  360  (1877). 

2  Wheeldon  v.  Barrows,  12  Ch.  D.  31,  affirmed  in  28  "Weekly  Rep.  196; 
approving  White  v.  Bass,  7  H,  &  N.  722,  and  limiting  Pyer  v.  Carter,  1  H. 
&N.  916. 


200  ACQUISITION   OF   EASEMENTS. 

Thus,  in  Collier  v.  Pierce,^  the  owner  of  two  adjoining 
lots,  on  one  of  which  was  a  building  near  the  dividing  line, 
with  a  window  overlooking  the  other  vacant  lot,  sold  them 
both  by  auction  on  the  same  day  to  different  purchasers, 
"  with  all  the  privileges  and  appurtenances."  The  purchaser 
of  the  vacant  lot  erected  a  building  thereon  which  darkened 
the  other's  window ;  but  it  was  held  the  purchaser  of  the 
house  acquired  no  right  by  implication  from  his  deed  to  con- 
tinued light  and  air  over  the  other  lot,  even  though  the  sale 
and  deed  to  him  preceded  in  point  of  time  that  to  the  buyer 
of  the  vacant  lot.  The  subject  was  carefully  examined  in 
Keiper  v.  Klein,^  where  both  lots  were  sold  by  the  same 
grantor,  at  auction  on  the  same  day  ;  but  this  was  held  to 
make  no  difference  in  the  rule,  the  court  saying  (page  320), 
"  "VVe  can  see  no  difference  between  a  public  and  private  sale, 
if  made  by  the  vendor,  as  affecting  the  construction  of  the 
conveyance  after  it  is  made." 

In  Mullen  v.  Strieker,^  the  owner  of  two  adjoining  lots  by  a 
substantially  simultaneous  sale  sold  the  same  to  different  par- 
ties, without  any  express  words  of  grant  of  light  and  air,  and 
it  was  held  that  the  purchaser  of  one  lot  on  which  was  a 
house  had  no  action  against  the  other  for  obstructing  the 
same.  The  court  say  (page  143)  :  "  In  the  view  we  take  of 
this  case,  it  is  unnecessary  to  consider  the  effect  of  the  cir- 
cumstance that  the  lots  were  simultaneously  sold  at  auction. 
In  a  proper  case,  no  doubt,  that  fact  might  go  far  to  rebut  the 
implication  of  a  grant,  and  there  are  a  number  of  decisions  to 
that  effect.  In  such  a  case  it  would,  perhaps,  be  quite  imma- 
terial which  deed  was  executed  first,  as  the  parties  to  the  first 
deed  would  be  held  to  have  known  and  intended  at  the  time 
of  its  execution  that  the  other  deed  was  to  be  executed  also, 
and  was  to  be  made  conformable  to  the  terms  and  conditions 
of  the  sale,  neither  purchaser  having  any  preference  over  the 
other.  But  we  place  our  decision  of  the  case  upon  other 
grounds,  and  need  not,  therefore,  discuss  the  question  whether 

1  7  Gray,  18  (1856).     And  see  Royce  v.  Guggenheim,  106  Mass.  205  (1870). 
■  2  51  Ind.  316  (1875). 
8  19  Ohio  St.  135  (1869). 


LIGHT.  201 

it  is  varied  by  the  fact  that  the  lots  were  simultaneously  sold. 
Nor  do  we  think  it  necessary  to  discriminate  between  the  case 
of  an  implied  grant  and  that  of  an  implied  reservation  in  a 
grant.  Some  of  the  early  English  decisions  stand  upon  the 
ground  of  such  a  distinction,  holding  that  the  same  circum- 
stances of  necessity  or  use,  which  would  support  an  implica- 
tion of  grant,  where  the  dominant  estate  is  first  sold,  will  not 
support  an  implication  of  reservation  where  the  servient  es- 
tate is  first  sold. 

"  What  we  hold  is,  that  the  law  of  implied  grants  and  im- 
plied reservation,  based  upon  necessity  or  use  alone,  should 
not  be  applied  to  easements  for  light  or  air  over  the  premises 
of  another  in  any  case.  In  our  view,  therefore,  the  law  of  the 
present  case  is  not  in  the  least  varied  by  the  fact  that  the 
dominant  estate  was  conveyed  first,  or  by  the  fact  that  both 
lots  were  sold  at  the  same  time.  It  seems  to  us  that  this  doc- 
trine of  easements  in  light  and  air,  founded  upon  sheer  neces- 
sity and  convenience,  like  the  kindred  doctrine  of  '  ancient 
windows,'  or  prescriptive  right  to  light  and  air  by  long  user, 
is  wholly  unsuited  to  our  condition,  and  is  not  in  accordance 
with  the  common  understanding  of  the  community.  Both 
doctrines  are  based  upon  similar  reasons  and  considerations, 
and  both  should  stand  or  fall  together.  They  are  unsuited  to 
a  country  like  ours,  where  real  estate  is  constantly  and  rapidly 
appreciating,  and  being  subjected  to  new  and  more  costly 
forms  of  improvements,  and  where  it  so  frequently  changes 
owners  as  almost  to  become  a  matter  of  merchandise.  In 
cases  of  cheap  and  temporary  buildings,  the  application  of  the 
doctrine  would  be  attended  with  great  uncertainty,  and  be  a 
fruitful  source  of  litigation.  It  would,  moreover,  in  many 
cases,  be  a  perpetual  incumbrance  upon  the  servient  estate, 
and  operate  as  a  veto  upon  improvements  in  our  towns  and 
cities.  It  will  be  safer,  we  think,  and  more  likely  to  subserve 
the  ends  of  justice  and  public  good,  to  leave  the  parties,  on 
questions  of  light  and  air,  to  the  boundary  lines  they  name, 
and  the  terms  they  express  in  their  deeds  and  contracts." 

No  grant  of  right  to  light  is  implied  from  the  covenant  for 
quiet  enjoyment,  commonly  made  on  sale  of  a  house.     An 


202  ACQUISITION   OF   EASEMENTS. 

owner  of   land  sold   part,  giving  the  ordinary  covenant  for 
quiet  enioyment.     The  purchaser  of  the  remainder 

Covenant  iii-i  it  t       • 

for  quiet  of  the  land  built  and  obstructed  the  light  and  air 
njojmen  .  ^^.^^  ^|jg  former  portion,  but  the  Court  of  Chancery- 
declined  to  restrain  the  building,  on  the  ground  that  the  cov- 
enant did  not  mean  that  the  enjoyment  of  the  light  and  air 
should  not  be  disturbed." 

EIGHT   BY   PRESCRIPTION,   AT    COMMON   LAW. 

This  seems  the  appropriate  place  to  present  the  American 
law  as  to  a  prescriptive  right  to  light,  which  is  apparently 
quite  different  from  the  English  common  law  on  that  subject, 
previous  to  the  Prescription  Act. 

Notwithstanding  a  few  early  American  opinions  to  the  con- 
trary, it  is  now  quite  well  settled  in  this  country  that  no  right 
to  light  and  air  is  acquired  laterally  over  the  land  of  an  ad- 
joining proprietor,  by  mere  use  or  prescription  for  any  length 
of  time.  The  short  ground  of  the  decisions  being,  first,  that 
the  making  of  a  window  in  one's  own  building,  on  his  own 
land,  though  looking  out  over  the  land  of  his  neighbor,  is  no 
encroachment  on  his  neighbors's  rights,  and  cannot,  therefore, 
be  regarded  as  adverse  to  him  ;  it  lacks,  therefore,  one  of  the 
chief  elements  of  a  prescriptive  right ;  second,  that  the  Eng- 
lish doctrine  is  not  applicable  to  the  state  of  things  in  this 
country,  and  would,  if  applied,  work  mischievous  conse- 
quences in  our  cities  and  villages. 

To  Judge  Gould,  of  Connecticut,  is  apparently  due  the 
credit  of  having  first  doubted,  if  not  denied,  that  the  English 
rule  ought  to  be  adopted  in  this  country,  and  of  suggesting 
that  possibly  the  early  English  cases  might  be  accounted  for 
on  the  ground  that  in  each  case  the  window,  claiming  the 
right,  overhung  or  projected  over  the  adjoining  estate,  so  that 
it  constituted  in  and  of  itself  an  encroachment  or  incumbrance 
upon  the  adjoining  property,  and  thus,  by  twenty  years'  ex- 
istence, acquired  the  right  to  continue.     But  this  fact,  if  so, 

«  Potts  t;.  Smith,  L.  R.  6  Eq.  311 ;  38  L.  J.  Cb.  58.  But  as  to  the  effect 
of  this  covenant  on  a  special  grant,  see  Leech  v.  Schweder,  L.  R.  9  Ch. 
App.  463;  43  L.  J.  Ch.  487. 


LIGHT.  203 

might  give  the  right  to  continue  the  window  or  overhanging 
structure  in  its  accustomed  place,  but  it  would  not,  therefore, 
necessarily  establish  the  right  to  look  out  of  it  over  the  neigh- 
boring land.  The  right  of  the  window  to  he  might  be  thus 
acquired,  but  not  a  right  for  persons  to  enjoy  the  prospect 
out  of  it  if  the  adjoining  owner  saw  fit  to  obstruct  it. 

In  1838  this  question,  having  been  indirectly  considered  in 
Mahan  v.  Brown, ^  directly  arose  in  the  Supreme  Court  of  New 
York,  in  Parker  v.  Foote,^  an  action  on  the  case  for  obstructing 
the  light  to  the  plaintiff's  house,  which  he  had  erected  twenty- 
four  years  befoi'e  upon  a  lot  of  land  he  had  bought  of  the  de- 
fendant himself,  who  had  after  that  lapse  of  time  erected  a 
building  on  his  remaining  lot,  and  thus  obstructed  the  light 
to  the  plaintiff's  window.  The  plaintiff's  claim  was  not  ad- 
mitted, and  as  this  may  be  called  the  leading  case  in  America, 
on  this  side  of  the  question,  we  give  the  following  extract  from 
the  opinion  of  Bronson,  J.  In  answer  to  the  argument  de- 
rived from  other  instances  of  easements  acquired  by  use  or 
prescription,  he  says : 

"  Most  of-  the  cases  on  the  subject  we  have  been  consider- 
ing relate  to  ways,  commons,  markets,  watercourses,  and  the 
like,  where  the  user  or  enjoyment,  if  not  rightful,  has  been  an 
immediate  and  continuing  injury  to  the  person  against  whom 
the  presumption  is  made.  His  property  has  either  been  in- 
vaded, or  his  beneficial  interest  in  it  has  been  rendered  less 
valuable.  The  injury  has  been  of  such  a  character  that  he 
might  have  immediate  redress  by  action.  But  in  the  case  of 
wiyidows  overlooking  the  land  of  another,  the  injury,  if  any, 
is  merely  ideal  or  imaginary.  The  light  and  air  which  they 
admit  are  not  the  subjects  of  property  beyond  the  moment 
of  actual  occupancy  ;  and  for  overlooking  one's  privacy  no  ac- 
tion can  be  maintained.  The  party  has  no  remedy  but  to 
build  on  the  adjoining  land  opposite  the  offensive  window. 
Chandler  v.  Thompson,  3  Camp.  80  ;  Cross  v.  Lewis,  2  B.  & 
C.  685,  per  Bayley,  J.  Upon  what  principle  the  courts  in 
Ei^gland  have  applied  the  same  rule  of  presumption  to  two 

1  13  Wend.  263. 

2  19  Wend.  308. 


204  ACQUISITION   OF   EASEMENTS. 

classes  of  cases  so  essentially  different  in  character,  I  have 
been  iniable  to  discover.  If  one  commit  a  daily  trespass  on 
the  land  of  another,  under  a  claim  of  right  to  pass  over,  or 
feed  his  cattle  upon  it,  or  divert  the  water  from  his  mill,  or 
throw  it  back  upon  his  land  or  machinery,  in  these  and  the 
like  cases,  long-continued  acquiescence  affords  strong  pre- 
sumptive evidence  of  right.  But  in  the  case  of  lights,  there 
is  no  adverse  user,  nor,  indeed,  any  use  whatever  of  another's 
property,  and  no  foundation  is  laid  for  indulging  any  pre- 
sumption against  the  rightful  owner. 

"  Although  I  am  not  prepared  to  adopt  the  suggestion  of 
Gould,  J.,  in  Ingraham  v.  Hutchinson,  2  Conn.  597,  that  the 
lights  which  are  protected  may  be  such  as  project  over  the 
land  of  the  adjoining  proprietor  ;  yet  it  is  not  impossible  that 
there  are  some  considerations  connected  with  the  subject 
which  do  not  distinctly  appear  in  the  reported  cases.  See 
Knight  V.  Halsey,  2  Bos.  &  P.  206,  per  Rooke,  J.  ;  1  Phil. 
Ev.  125. 

"  The  learned  judges  who  have  laid  down  this  doctrine  have 
not  told  us  upon  what  principle  or  analogy  in  the  law  it  can 
be  maintained.  They  tell  us  that  a  man  raa}'^  build  at  the 
•  extremity  of  his  own  land,  and  that  he  may  laivfully  have 
windows  looking  out  upon  the  lands  of  his  neighbor.  2  B.  & 
C.  686  ;  3  lb.  332.  The  reason  why  he  may  lawfully  have 
such  windows  must  be  because  he  does  his  neighbor  no  wrong  ; 
and  indeed  so  it  is  adjudged,  as  we  have  already  seen ;  and 
yet,  somehow  or  other,  by  the  exercise  of  a  lawful  right  in  his 
own  land  for  twenty  years,  he  acquires  a  beneficial  interest  in 
the  land  of  his  neighbor.  The  original  proprietor  is  still 
seised  of  his  fee,  with  the  privilege  of  paying  taxes  and  assess- 
ments, but  the  right  to  build  on  the  land,  without  which  city 
and  village  lots  are  of  little  or  no  value,  has  been  destroyed 
by  a  lawful  window.  How  much  land  can  thus  be  rendered 
useless  to  the  owner  remains  to  be  settled.  2  B.  &  C.  686 ; 
2  Car.  &  P.  465 ;  5  lb.  438.  Now  what  is  the  acquiescence 
which  concludes  the  owner  ?  No  one  has  trespassed  upon  his 
his  land,  or  done  him  a  legal  injury  of  any  kind.  He  has 
submitted  to  nothing  but  the  exercise  of  a  lawful  right  on 


LIGHT.  205 

the  part  of  his  neighbor.  How  then  has  he  forfeited  the 
beneficial  interest  in  his  property  ?  He  has  neglected  to  in- 
cur the  expense  of  building  a  wall  twenty  or  fifty  feet  high, 
as  the  case  may  be  —  not  for  his  own  benefit,  but  for  the  sole 
purpose  of  annoying  his  neighbor.  That  was  his  only  remedy. 
A  wanton  act  of  this  kind,  although  done  on  one's  own  land, 
is  calculated  to  render  a  man  odious.  Indeed,  an  attempt  has 
been  made  to  sustain  an  action  for  erecting  such  a  wall.  Ma- 
han  V.  Brown,  13  Wend.  261.  There  is,  I  think,  no  princi- 
ple upon  which  the  modern  JSnglisJi  doctrine  on  the  subject 
of  lights  can  be  supported.  It  is  an  anomaly  in  the  law.  It 
may  do  well  enough  in  England  ;  and  I  see  that  it  has  recently 
been  sanctioned  with  some  qualification  by  an  act  of  parlia- 
ment. Stat.  2  &  3  Wm.  IV.  c.  71,  s.  3.  But  it  cannot  be 
applied  in  the  growing  cities  and  villages  of  this  country  with- 
out working  the  most  mischievous  consequences.  It  has  never, 
I  think,  been  deemed  a  part  of  our  law.  3  Kent's  Com.  416, 
note  a. 

"  Nor  do  I  find  that  it  has  been  adopted  in  any  of  the 
states.  The  case  of  Story  v.  Odin,  12  Mass.  157,  proceeds  on 
an  entirely  different  principle.  It  cannot  be  necessary  to  cite 
cases  to  prove  that  those  portions  of  the  common  law  of  Eng- 
land which  are  hostile  to  the  spirit  of  our  institutions,  or 
which  are  not  adapted  to  the  existing  state  of  things  in  this 
country,  form  no  part  of  our  law.  And  besides,  it  would  be 
difficult  to  prove  that  the  rule  in  question  was  known  to  the 
common  law  previous  to  the  19th  of  April,  1775.  Const.  N. 
Y.  art.  7,  §  13.  There  were  two  nisi  prius  decisions  at  an 
earlier  day,  Lewis  v.  Price,  in  1761,  and  Dongal  v.  Wilson,  in 
1763 ;  but  the  doctrine  was  not  sanctioned  in  Westminster 
Hall  until  1786,  when  the  case  of  Darwin  v.  Upton  was  de- 
cided by  the  K.  B.  2  Saund.  175,  note  2.  This  was  clearly 
a  departure  from  the  old  law.    Bury  v.  Pope,  Cro.  Eliz.  118." 

This  decision  has  often  been  approved  in  New  York,  and 
may  be  considered  the  settled  law  of  that  state. ^ 

1  See  Myers  v.  Gemmel,  10  Barb.  537  (1851);  Doyle  v.  Lord,  64  N.  Y. 
439  (1875). 


206  ACQUISITION   OF   EASEMENTS. 

In  1847  the  Supreme  Court  of  Maine,  in  Pierre  v.  Fernald,^ 
thus  forcibly  stated  the  objections  to  the  English  rule  :  "Notli- 
ing  in  the  law  can  be  more  certain  than  one's  right  to  oc- 
cupy and  use  his  own  land  as  he  pleases,  if  he  does  not 
thereby  injure  others.  He  may  build  upon  it,  or  occupy  it  as 
a  garden,  grass-plat  or  passageway,  without  any  loss  or  dim- 
inution of  his  rights.  No  other  person  can  acquire  any  right 
or  interest  in  it,  merely  on  account  of  the  manner  in  which  it 
has  been  occupied.  When  one  builds  upon  his  own  land  im- 
mediately adjoining  the  land  of  another  person  and  puts  out 
windows  overlooking  that  neighbor's  land,  he  does  no  more 
than  exercise  a  legal  right.  This  is  admitted.  Cross  v. 
Lewis,  2  B.  &  C.  686.  By  the  exercise  of  a  legal  right  he 
can  make  no  encroachment  upon  the  rights  of  his  neighbor, 
and  cannot  thereby  impose  any  servitude  or  acquire  any  ease- 
ment by  the  exercise  of  such  a  right  for  any  length  of  time. 
He  does  no  injury  to  his  neighbor  by  the  enjoj^ment  of  the 
flow  of  light  and  air,  and  does  not,  therefore,  claim  or  exer- 
cise any  right  adversely  to  the  rights  of  his  neighbor.  Nor 
is  there  anything  of  similitude  between  the  exercise  of  such 
a  right  and  the  exercise  of  rights  claimed  adversely.  It  is 
admitted  in  the  case  supposed  that  no  adjoining  landowner 
can  obtain  redress  by  any  legal  process.  In  other  words,  that 
his  rights  have  not  been  encroached  upon ;  and  that  he  has  no 
cause  of  complaint.  And  yet,  while  thus  situated  for  more 
than  twenty  years,  he  loses  his  right  to  the  free  use  of  his 
land,  because  he  did  not  prevent  his  neighbor  from  enjoying 
that  which  occasioned  him  no  injury  and  afforded  him  no  just 
cause  of  complaint.  The  result  of  the  doctrine  is,  that  the 
owner  of  land  not  covered  by  buildings,  but  used  for  any 
other  purpose,  may  be  deprived  of  the  right  to  build  upon  it 
by  the  lawful  acts  of  the  owner  of  the  adjoining  land  per- 
formed upon  his  own  land  and  continued  for  twenty  years. 

"  It  may  be  safely  affirmed  that  the  common  law  contained 
no  such  principle.  The  doctrine  as  stated  in  the  more  recent 
decisions  appears  to  have  arisen  out  of  the  misapplication  in 
England  of  the  principle,  by  which  rights  and  easements  are 

1  26  Me.  436. 


LIGHT.  207 

acquired  by  the  adverse  claim  and  enjoyment  of  them  for 
twenty  years,  to  a  case  in  which  no  adverse  or  injurious  claim 
was  either  made  or  enjoyed." 

The  courts  of  Pennsylvania  also  deny  the  application  of  the 
English  doctrine  to  our  situation.^ 

In  South  Carolina,  it  was  long  thought  that  the  English 
rule  was  sanctioned  by  the  language  used  in  McCready  v. 
Thomson  ;  ^  but  upon  full  consideration  of  the  arguments  and 
authorities  the  opposite  view  was  subsequently  taken  and  fully 
adopted  by  the  Court  of  Appeals,  although  the  use  had  con- 
tinued over  fifty  years.^ 

Massachusetts  has  fully  adopted  the  same  doctrine.  The 
question  was  first  suggested  by  counsel  in  that  state  in  Atkins 
V.  Chilson,*  but  it  became  unnecessary  to  decide  it,  and  again 
in  Fifty  Associates  v.  Tudor  ;  ^  but  subsequently  the  principle 
was  fully  approved  and  followed  in  Rogers  v.  Sawin.^ 

In  Maryland,  also,  notwithstanding  the  dictum  to  the  con- 
trary in  Wright  v.  Freeman,'''  the  English  rule  is  now  entirely 
repudiated.^  It  is  true,  the  Mai  y land  courts  still  hold  that 
such  a  right  may  be  acquired  by  an  implied  grant  arising 
from  a  deed  of  one  lot  by  the  proprietor  of  both  ;^  but  even 
this  is  against  the   current  of  American  decisions. ^^^     Many 

1  Hoy  V.  Sterrett,  2  Watts,  327  (1833);  Wheatley  v.  Baugh,  25  Penn. 
St.  532  (1855)  ;  more  emphatically  repeate^l  in  Haverstick  v.  Sipe,  33  lb. 
868  (1859). 

2  Dudley,  131  (1838), 

3  Napier  v.  Bulwinkle,  5  Rich.  311  (1852). 

4  7  Met.  402  (1844). 

6  6  Gray,  259  (1856). 

6  10  Gray,  376  (1858).  So  in  Carrig  v.  Dee,  14  lb.  583  (1860)  ;  and  in 
many  other  cases  since;  Richardson  v.  Pond,  15  Gray,  387  (1860)  ;  Paine 
V.  Boston,  4  Allen,  169  (1862);  Randall  v.  Sanderson,  111  Mass.  119 
(1872),  quite  overruling  any  earlier  dicta  to  the  contrary.  And  it  was 
held  quite  immaterial  that  the  sill  of  the  overlooking  window  projected 
over  the  boundary  line  so  as  to  overhang  the  neighbor's  land,  or  that  the 
•window  itself  would  swing  outward  over  the  same. 

'  5  H.  &  J.  477. 

8  Smith  V.  White,  and  Cherry  v.  Stein,  11  Md.  23  (1858). 

9  Janes  v.  Jenkins,  34  Md.  1  (1871). 

1°  Keats  r.  Hugo,  115  Mass.  216  (1874). 


208  ACQUISITION   OF  EASEMENTS. 

other  states  —  Vermont,  Ohio,  Texas,  Alabama,  Indiana, 
Kentucky,  and  others  —  have  deliberately  adopted  the  same 
views.^ 

Morrison  v.  Marquardt,^  sometimes  cited  on  the  same  side, 
seems  to  have  been  decided  rather  against  the  doctrine  of  an 
implied  grant  of  a  right  to  light  and  air  from  a  conveyance 
of  the  estate  to  which  it  is  claimed  as  appurtenant ;  a  very 
different  question,  but  one,  however,  which  the  main  current 
of  authorities  in  America  decide  the  same  way  as  when  a 
right  is  claimed  merely  by  long  use. 

In  opposition  to  this  long  array  of  express  adjudication, 
what  support  has  the  English  rule  in  our  courts  ?  The  doc- 
trine of  a  prescriptive  right  from  long  use  merely  does  seem 
to  have  been  approved  in  New  Jersey  in  Robeson  v.  Pittenger,^ 
but  there  was  an  additional  important  fact  in  that  case,  that 
the  two  adjoining  lots  had  been  both  owned  by  the  same 
party,  and  after  the  plaintiff's  building  had  been  erected  on 
one,  he  had  sold  the  defendant's  lot  to  other  parties,  from 
which  an  implied  grant,  or  reservation  rather,  has  been  some- 
times deduced  of  a  right  to  continue  the  lights  as  before,  and 
the  decision  may  in  part  have  rested  on  that  ground.  If  not, 
it  may  be  considered  as  fully  overruled  by  the  recent  case  of 
Hayden  v.  Dutcher.*  The  same  observation  applies  still  more 
strongly  to  the  case  of  Durel  v.  Boisblanc.^  Judge  Story,  in 
United  States  v.  Appleton,^  apparently  approves  the  doc- 
trine. 

Probably  the  most  elaborate  case  on  this  side  is  that  of 
Clawson  V.  Primrose, '^  in  the  Court  of  Chancery  of  Delaware, 
in  which  Bates,  Ch.,  after  a  critical  and  exhaustive  review  of 

1  See  Hubbard  v.  Town,  33  Vt.  295;  Hieatt  v.  Morris,  10  Ohio  St.  530  ; 
Mullen  V.  Strieker,  19  lb.  142;  Klein  i;.  Gelirung,  25  Tex.  238;  Ward  v. 
Neal,  37  Ala,  500;  Powell  v.  Sims,  5  W.  Va.  1;  Stein  v.  Hauck,  56  Ind. 
65;  Ray  v.  Sweeney,  14  Bush,  1. 

2  24  Iowa,  35  (1867). 

8  1  Green  Ch.  57  (1838). 

4  31  N.J.  Eq.  217. 

5  1  La.  Ann.  407  (1846). 

6  1  Sumn.  402. 

'  24  Am.  Law  Reg.  N.  S.  6  (1875). 


LIGHT.  209 

the  English  and  American  decisions  on  this  subject,  adopted 
the  English  law,  and  restrained  by  injunction  the  defendant 
from  erecting  a  building  on  a  vacant  lot,  which  might  darken 
the  complainant's  windows. 

In  Gerber  v.  Grabel^  the  marginal  notes  would  indicate 
that  the  English  rule  was  approved,  and  the  case  is  often  so 
cited ;  but  a  careful  examination  of  the  case  shows  that  this 
was  not  necessarily  the  point  of  the  decision.  The  action  was 
for  wrongfully  obstructing  the  plaintiff's  light,  but  the  decla- 
ration did  not  allege  on  what  ground  the  plaintiff  claimed  the 
right,  whether  by  prescription,  express  grant,  or  implied 
grant,  and  judgment  below  having  been  arrested,  on  a  ver- 
dict for  the  plaintiff,  this  decision  was  reversed  and  judgment 
on  the  verdict ;  because,  said  the  court,  "  the  plaintiff  might 
have  proved  a  prescription  under  our  common  law,  as  we  have 
laid  it  down,  or  he  might  have  proved  an  express  grant ;  or 
he  might  have  proved  circumstances  from  which  a  grant  or 
estoppel  would  be  presumed  without  regard  to  length  of  use. 
We  must  presume  the  proofs  warranted  the  verdict,  and  there 
is  nothing  in  the  verdict  contrary  to  law."  But  Judge  Scates 
had  already  said,  after  stating  the  English  rule,  "  but  such  is 
not  the  rule  of  the  common  law  of  Illinois,  as  I  shall  proceed 
to  show ;  "  and  he  continues,  "  while  we  highly  respect  the 
learned  decisions  of  English  courts  adopting  an  analogous  rule 
to  their  statute  of  limitations,  we  must  bow  to  the  authority 
of  these  older  rulings  (which  he  had  before  cited  as  not  sup- 
porting the  doctrine  of  prescription),  with  liberty  to  say  that 
a  twenty  years'  prescription  for  the  easement  of  light  and  air 
is  not  applicable  to  the  circumstances  of  this  state,  unsettled 
and  unimproved  as  it  is  ; "  and  he  cites  with  approbation 
Parker  v.  Foote,  19  Wend.  309,  and  other  cases  on  the  same 
side.  And  from  the  recent  case  of  Guest  v.  Reynolds,  68  111, 
478,  we  do  not  understand  Illinois  to  be  in  favor  of  the  Eng- 
lish rule.  Precisely  the  same  point  arose  in  Ward  v.  Neal,^ 
namely,  that  a  general  averment  of  the  right  to  light  might  be 
good  as  a  matter  of  pleading^  upon  demurrer,  since  under  that 
allegation  the  right  might  be  proved  to  have  arisen  from  ex- 
1  16  111.  217  (1854).  2  35  j^j^.  602  (1860). 

14 


210  ACQUISITION   OF  EASEMENTS. 

press  grant,  as  well  as  by  prescription.  But  when  the  case 
came  again  before  the  court  upon  the  facts,  setting  up  an  ad- 
verse user  merely,  the  English  rule  was  expressly  denied  and 
the  American  adopted:  37  Ala.  500  (1861).  And  nothing  in 
Ray  V.  Lynes  ^  sanctions  a  different  opinion,  though  it  is  some- 
times cited  as  doing  so. 

^  In  view  of  the  course  of  our  decisions  on  this  question,  we 
think  it  may  be  reasonably  concluded  that,  notwithstanding 
some  early  opinions  to  the  contrary,  it  cannot  now  he  safely 
asserted  that  the  doctrine  of  a  right  to  light  and  air  hy  a  mere 
prescriptive  use  prevails  at  present  in  a  single  American  state., 
unless  Delaware  be  an  exception. 

PRESCRIPTION   ACT. 

It  has  already  been  remarked  that  the  Prescription  Act 
makes  special  provision  for  the  acquisition  of  rights  to  light, 
and  the  third  section  of  that  act,  which  relates  exclusively  to 
the  acquisition  of  rights  to  light,  has  been  set  out  at  length." 
To  enable  a  right  to  light  to  be  acquired  under  the  provisions 
"Actual"  of  that  section,  the  statute  requires  actual  enjoy- 
.  enjoyment.  ^^^^^  {qj.  i\^q  {y\\  period  of  twenty  years,  and  a  ques- 
tion has  arisen  whether  the  statute  is  satisfied,  and  whether  a 
right  is  gained,  if  a  house  is  built  and  the  windows  put  in,  but 
if  the  decorative  and  internal  portion  of  the  house  is  so  un- 
finished as  to  render  the  house  uninhabitable,  and  if,  in  fact, 
the  house  is  uninhabited  during  the  prescriptive  period.  It 
has  been  held  that  under  such  circumstances  the  statute  is 
satisfied,  and  that  the  right  can  be  acquired  ;  for  that  no  oc- 
cupation, in  the  sense  of  personal  occupation,  is  necessary  to 
constitute  actual  enjoyment  within  the  meaning  of  the  Act." 

It  appears  that  there  was  formerly  a  custom  in  the  city  of 
London,  that  any  owner  of  a  house,  or  of  ancient 

Ancient  <.         i  .1  •  •    ^ 

custom  of     foundations  of  a  house,  in  that  city,  might    at  his 

pleasure  raise  the  house,  or  build  a  new  house  on 

the  ancient  foundations,  though  he   thereby   obstructed   the 

light  which  had  been  accustomed  to  enter  the  ancient  win- 

1  10  Ala.  63  (1846).  *"  Ante,  p.  137. 

^  Courtauld  v.  Legh,  L.  R.  4  Exch.  126;  38  L.  J.  Excb.  45. 


LIGHT.  211 

dows  of  the  adjoining  house.  This  custom  was  abrogated  by 
the  third  section  of  the  Prescription  Act,  which  creates  an  ab- 
solute and  indefeasable  right  to  light  after  enjoyment  for 
twenty  years,  any  local  usage  or  custom  to  the  contrary  not- 
withstanding f 

The   third  section  of  the  Prescription  Act,  which  relates 
solely  to  rights  to  light,  differs  materially  from  the   prescrip- 
second  in  its  form.     The  second  section  of  the  act   ''^f.  ^\s^^ 

,  .  to  light 

says  that  when  the  easements  therein  mentioned  now  de- 
have  been  actually  enjoyed  by  any  person  claiming  on"he°sta^ 
right  thereto,  without  interruption,  for  the  full  pe-  "^^* 
riod  of  twenty  years,  no  claim  to  those  easements  is  to  be  de- 
feated by  showing  only  that  they  were  first  enjoyed  at  any 
time  prior  to  such  period  of  twenty  years,  that  is,  by  showing 
the  commencement  of  the  user,  so  as  to  negative  immemorial 
user,  as  could  be  done  if  the  claim  was  made  by  prescription 
at  common  law,  but  that  the  claim  may  be  defeated  in  any 
other  way  by  which  the  same  would  have  been  liable  to  be 
defeated  before  the  act  was  passed ;  the  third  section,  on  the 
other  hand,  says  that  when  the  access  and  use  of  light  to  and 
for  any  dwelling-house  shall  have  been  actually  enjoyed  there- 
with for  the  full  period  of  twenty  years,  without  interruption, 
the  right  thereto  is  to  be  deemed  absolute  and  indefeasible. 
It  has  been  already  pointed  out  that  to  support  a  claim  to  an 
easement  by  prescription  at  common  law,  it  is  essential  that  a 
grant  should  be  capable  of  being  presumed,  and  that  no  alter- 
ation was  made  in  the  law  in  this  respect  by  the  second  sec- 
tion of  the  Act ;  but  it  is  not  so,  owing  to  the  peculiar  form 
of  the  third  section  of  the  statute,  in  the  case  of  claims  to 
rights  to  light.  The  change  that  was  effected  by  the  Pre- 
scription Act  in  the  case  of  claims  to  rights  to  light,  was  first 
observed  in  the  case  of  Truscott  v.  Merchant  Taylors'  Com- 
pany,^ in  which  Coleridge,  J.,  said  :  "  The  case  turns  upon  the 
construction   to  be  put  on  section  three  of  Lord  Tenterden's 

=^  Truscott  V.  Merchant  Taylors'  Co.  11  Exch.  855;  25  L.  J.  Exch.  173; 
Salters'  Co.  v.  Jay,  3  Q.  B.  109;  11  L.  J.  Q.  B.  173. 

y  11  Exch.  855;  25  L.  J.  Exch.  173;  Frewen  v.  Phillips,  11  C.  B.  N.  S. 
449;  30  L.J.  C.  P.  356. 


212  ACQUISITION   OF   EASEMENTS. 

Act,  which  is  addressed  merely  to  the  question  of  access  of 
light.     That  section   simplifies,  and  almost   new  founds,  the 
rif^ht  to  access  of  light.     It  founds  the  right  upon  the  actual 
enjoyment  for  the  full  period  of  twenty  years  without  inter- 
ruption, unless  that  enjoyment  be  shown  to  be  had  under  a 
consent  in  writing.     It  puts  the  right,  therefore,  on  the  sim- 
plest foundation,  with  the  simplest   exception."     After  this 
decision,  the  case  of  Tapling  v.  Jones  ^  arose,  which  was  car- 
ried to  the  House  of  Lords.     This  is  an  extremely  important 
case,  as  it  entirely  reversed  the  existing  notions  of  the  law  re- 
lating to  the  right,  or  supposed  right,  of  a  servient  owner  to 
block  up  ancient  lights,  if  the  owner  of  them  opened  new 
windows  which  could  not  be  obstructed  without  at  the  same 
time   obstructing  the  ancient  lights.     More  will  be  said  on 
that  point  hereafter,  but  besides   that,  some  most  important 
principles  of  law  relating  to  rights  to  light,  and  regarding  the 
opening  of  windows  overlooking  a  neighbor's  land,  were  ex- 
plained in  the  judgments  of  the  lords.     Among  these,  a  prin- 
ciple was  laid  down,  entirely  affirming  the  opinion  of  Cole- 
ridge, J.,  on  the  effect  of  the  Prescription  Act  upon  prescrip- 
tive  rights   to  light.      The   lord  chancellor  said  that  "the 
right  to  what  is  called  an  '  ancient  light '  now  depends  upon 
positive  enactment :  it  is  matter  juris  positive  and  does  not 
require,  and  therefore  ought  not  to  be  vested,  on  any  pre- 
sumption of  grant  or  fiction  of  a  license  having  been  obtained 
from  the  adjoining  proprietor.    Written  consent  or  agreement 
may  be  used  for  the  purpose  of  accounting  for  the  enjoyment 
of   the   servitude,  and    thereby    preventing   the    title    which 
would  otherwise  arise  from  uninterrupted  user  or  possession 
during   the  requisite  period.     This  observation   is   material, 
because  I  think  it  will  be  found  that  error  in  some  decided 
cases  has  arisen  from  the  fact  of  the  courts  treating  the  right 
as  originating  in  a  presumed  grant  or  license." 

Although  Tapling  v.  Jones  was  a  decision  of  the  House  of 

Doubts        Lords,  there  have  been  cases  in  which  the  soundness 

prefcrfp-      ^^  ^^^^   principle  there  laid  down  that  prescriptive 

Uve  rights    rights  to  light  now  depend  solely  upon  the  Prescrip- 

^  11  H.  L.  C.  290;  34  L.  J.  C.  P.  342. 


LIPHT.  213 

tlon  Act  has  been  doubted,  and  although  these  opin-   to  light 
ions  cannot,  it  is  presumed,  override  a  decision  of  the   pend  solely 
House  of  Lords,  they  are  of  such  weight,  and  the  sub-   statute. 
ject  is  of  such  importance,  that  they  demand  special 
notice.     The  first  case  of  this  kind  was  Lanfranchi  v.  Macken- 
zie," when  Malins,  V.  C,  said  he  did  not  understand  the  Pre- 
scription Act  to  have  made  any  difference  in  the  principle  on 
which  rights  to  light  are  acquired  by  prescription,  and  that 
he  only  read  the  statute  as  meaning  that  there  was  no  abso- 
lute period  for  acquisition  of  a  right  to  light  before  the  stat- 
ute, but  that  now  the  period  is  fixed  at  twenty  years,  and 
that  all  the  cases  since  the  act  was  passed  had  been  decided 
upon  the  ancient  principles  of  law.     So  also  in  Aynsley  v. 
Glover,*  the  lords  justices  expressed  similar  views.     The  bill 
in  that  case  was  filed  for  an  injunction  to  restrain  interference 
with  hght,  and  Mellish,  L.  J.,  in   his    judgment,  in  which 
James,  L.  J.,  concurred,  said  :  "  In  my  opinion  it  is  unneces- 
sary to  consider  whether  the  plaintiff  could  have  made  out 
his  right  under  the  statute  2  &  3  Wm.  IV.  c.  71,  because  I 
am  of  opinion  that  under  the  circumstances  of  the  case  the 
plaintiff  has  clearly  made  out  a  right  from  time  immemorial. 
The  statute  2  &  3  Wm.  IV.  c.  71,  has  not,  as  I  apprehend, 
taken  away  any  of  the  modes  of  claiming  easements  which  ex- 
isted before  that  statute.     Indeed,  as  the  statute  requires  the 
twenty  years,  or  forty  years  (as  the  case  may  be),  the  enjoy- 
ment during  which  confers  a  right,  to  be  the  twenty  years  or 
forty  years  next  immediately  before   some    suit  or  action  is 
brought  with  respect  to  the  easement,  there  would  be  a  vari- 
ety of  valuable  easements,  which  would   be   altogether   de- 
stroyed if  a  plaintiff  was  not  entitled  to  resort  to  the  proof 
which  he  could  have  resorted  to  before  the  act  was  passed." 

Another  point  of  difference  between  the  second  and  third 
sections  of  the  Prescription  Act  is,  that  in  the  former  p^j-^^y^g^j 
section  the  easements  are  required  to  have  been  en-    ';  as  of 
joyed  "  as  of  right "  during  the  prescriptive    user,     '^ 
but  the  latter  section  does  not  make  that  requisition.     It  was 

«  L.  R.  4  Eq.  at  p.  426;  36  L.  J.  Ch.  at  p.  522. 
6  L.  R.  10  Ch.  App.  283 ;  44  L.  J.  Ch.  523. 


214  ACQUISITION   OF   EASEMENTS. 

tliouglit  in  the  case  of  Harbidge  v.  Warwick/  that  although 
there  is  a  difference  in  the  form  of  tlie  second  and  third  sec- 
tions of  the  Prescription  Act,  the  user  in  each  case  ought  to 
be  the  same,  for  that  although  the  forms  of  pleading  given  in 
the  fifth  section  as  applicable  to  actions  of  trespass  are  not 
commonly  applicable  to  cases  of  claims  to  light,  yet  that  they 
may  be,  for  if  in  an  action  for  demolishing  a  wall  which 
would  be  an  action  for  trespass,  a  claim  of  right  to  light 
should  be  set  up  by  way  of  justification  for  the  demolition,  it 
would  be  necessary  to  state  in  the  plea  that  the  light  had 
been  enjoyed  as  of  right  for  twenty  years.  It  was  therefore 
argued  that  the  proof  of  enjoyment  must  be  the  same,  whether 
it  is  put  forward  as  part  of  the  defence  in  an  action  for  tres- 
pass for  removing  an  obstruction,  or  as  part  of  a  complaint  in 
an  action  on  the  case  for  causing  an  obstruction —  that  is,  the 
light  in  either  case  must  be  proved  to  have  been  enjoyed  "  as 
of  right."  The  notion,  however,  that  the  Prescription  Act 
really  requires  light  to  have  been  enjoyed  "  as  of  right," 
though  it  does  not  say  so,  has  not  generally  prevailed,  and  in 
more  recent  cases  than  that  above  mentioned  the  reverse  has 
been  decided  ;  thus,  in  the  case  of  Truscott  v.  The  Merchant 
Taylors'  Company,*^  Cresswell,  J.,  said  in  his  judgment :  "  It 
appears  to  me  that  Parliament  in  this  statute  has  been  actu- 
ated by  a  desire  to  settle  titles  and  rights,  especially  in  the 
third  section.  By  this  section  a  person  who  has  the  access  of 
light  for  the  full  period  of  twenty  years  without  interruption 
obtains  a  right  to  it.  The  statute  does  not  say  a  person  who 
has  enjoyed  it  as  of  right,  for  every  one  has  a  right  to  open  a 
window  in  his  own  soil."  This  opinion  of  Cresswell,  J.,  was 
approved  by  Pollock,  C.  B.,  when  delivering  the  judgment  of 
the  Court  of  Exchequer  Chamber  in  Frewen  v.  Phillips,*  in 
which  he  said  :  "  Now,  although  that  case  was  not  precisely 
the  case  now  before  us,  yet  it  recognizes  that  it  was  the  inten- 
tion of  the  legislature  to  adopt  a  simple  and  short  period  for 
the  acquisition  of  the  right  to  light,  and  that  it  need  not  he 

<^  3  Exch.  552  ;  18  L.  J.  Exch.  245. 
"  11  Exch.  855;  25  L.  J.  Exch.  173. 
'  11  C.  B.  N.  S.  449  ;  30  L.  J.  C.  P.  366. 


LIGHT.  215 

enjoyed  as  of  right ;  "  and  Maule,  B.,  in  the  case  of  Flight  v. 
Thomas/  also  expressed  an  opinion  that  the  words  "  claiming 
right  thereto  "  were  purposely  omitted  in  the  third  section  of, 
the  act.  As  then  the  enjoyment  in  the  case  of  claims  to  light 
is  not  required  by  the  act  to  have  been  "  as  of  right,"  those 
claims  may  be  sustained  even  though  the  enjoyment  was  had 
by  permission,  and  although  rent  or  an  annual  sum  has  been 
paid  for  permission  to  enjoy  the  light.'' 

From  the  recent  interpretation  of  the  act  it  would  seem 
also  that  claims  to  light  may  be  sustained,  although  ^^  ^^.^.^ 
the  servient  owner  has  been  incapable  of  resisting  of  resisting 
the  enjoyment  of  the  light  —  as,  for  instance,  when  ®°^°^" 
the  servient  tenement  has  been  in  the  occupation  of  a  tenant 
during  the  whole  prescriptive  period ;  *  but  some  doubt  may 
exist  whether,  on  further  consideration,  the  fact  that  the  ser- 
vient owner  has  been  incapable  of  resistance  would  not  be 
held  to  prevent  the  power  of  acquiring  a  right  to  light  by  pre- 
scription as  much  as  it  would  prevent  the  acquisition  of  any 
other  easement,  for  the  statute  requires  the  light  to  have  been 
enjoyed  without  interruption,  and  it  may  be  said  that  that 
expression  implies  that  there  must  be  a  power  of  interrupt- 
ing.* 

Although  light  need  not,  to  satisfy  the  statute,  be  enjoyed 
*'  as  of  right,"  yet  it  must  be  enjoyed  in  the  char-  Enjoyment 
acter  of  an  easement  —  that  is  to  say,  the  right  can-  tg/of^an^' 
not  be  acquired  if  the  enjoyment  has  existed  during  easement, 
unity  of  ownership  of  the  dominant  and  servient  tenements. 
This  appears  to  be  the  case,  as  the  statute  requires  the  light 
to  have  been  enjoyed  without  interruption,  and  therefore 
seems  to  contemplate  an  enjoyment  that  could  be  interrupted 
by  the  owner  of  the  adjoining  land,  at  least  during  some  part 
of  the  prescriptive  period,  and  an  interruption  could  not  oc- 

/  11  A.  &  E.  at  p.  695  ;  Mayor  of  London  v.  The  Pewterers  Co.  2  Moo. 
&  Rob.  409. 

0  Plasterers'  Co.  v.  Parish  Clerks'  Co.  6  Exch.  630 ;  20  L.  J.  Exch. 
362. 

*  Simper  v.  Foley,  2  John.  &  H.  555. 

<  Harbidge  v.  Warwick,  3  Exch.  652;  18  L.  J.  Exch.  245. 


216  ACQUISITION  OF   EASEMENTS. 

cur  if  the  servient  tenement  is  during  the  whole  prescriptive 
period  in  the  occupation  of  the  claimant  of  the  easement/ 

A  right  to  unobstructed  light  and  air  can  only  be  acquired 
1-  h  ^y  prescription  for  the  benefit  or  in  respect  of  build- 

open  ings  ;  such  a  right  cannot  be  so  acquired  for  open 

groun  .  ground.  This  was  first  determined  in  the  case  of 
Roberts  v.  Macord*  at  nisi  prius,  when  it  was  held  that  no 
right  to  have  the  air  unobstructed  could  be  acquired  by  pre- 
scription in  respect  of  a  timber  yard  and  saw-pit,  and  that 
the  mere  fact  of  having  an  open  saw-pit  in  a  yard,  and  laying 
timber  there  to  dry  (for  which  purpose  it  was  desirable  the 
air  should  have  free  access  to  the  yard),  for  twenty  years, 
was  not  sufficient  to  raise  a  presumption  of  a  grant.  Inde- 
pendently, however,  of  the  cases  in  which  this  rule  of  law  is 
upheld  on  principle,  it  should  be  noticed  that  the  Prescription 
Act  provides  for  the  acquisition  of  rights  to  light  only  when 
the  access  and  use  of  light  to  ani/  building  shall  have  been 
enjoyed  for  twenty  years,  and  that  nothing  is  said  which  can 
by  any  possibility  extend  this  mode  of  acquiring  the  right  to 
a  saw-pit  or  a  garden. 

A  question  of  much  importance  to  shopkeepers  who  display 
goods  for  view  in  their  windows   relates   to   their 

Light  to         ^, 

shop-win-  right  to  have  the  light  falling  uninterruptedly  on 
the  goods  there  displayed.  The  point  was  men- 
tioned incidentally  by  Wood,  V.  C,  in  the  case  of  Smith  v. 
Owen,^  which  was  a  suit  for  an  injunction  to  restrain  the 
owner  of  a  house  in  Bond  Street  from  extending  his  build- 
ing forward  so  as  to  exclude  the  light  from  an  adjoining  shop 
window.  It  appeared  from  the  evidence,  however,  that  the 
effect  of  the  building  would  be  merely  to  prevent  persons  ap- 
proaching from  seeing  the  shop  so  far  down  the  street  as  was 
then  possible,  but  that  the  light  would  not  be  obstructed. 
The  vice  chancellor  said,  that  so  far  as  a  person  standing 
outside  the  window  would  be  prevented  from  getting  a  view 

•^  Harbidge  v.  Warwick,  3  Exch.  552;  18  L.  J.  Exch.  245;  Ladyman  v. 
Grave,  L.  R,  6  Ch.  App.  763. 

*  1  Moo.  &  Rob.  230;  Potts  v.  Smith,  L.  R.  6  Eq.  311;  38  L.  J.  Ch.  58. 

'  35  L.  J.  Ch.  317  (not  elsewhere  reported).  See  Hall  v.  Evans,  42  Up. 
Can.  Q.  B.  190. 


LIGHT.  217 

of  the  goods  there  exhibited,  the  case  would  stand  on  the 
same  footing  as  an  obstruction  to  light ;  a  person  must  not 
commit  an  injury  in  creating  such  an  obstruction  ;  and  that,  if 
a  shopkeeper  wished  to  show  his  goods  within  the  shop,  he 
had  a  right  to  the  free  access  of  light  for  that  purpose,  and 
he  apprehended  it  was  the  same  if  he  wished  to  show  the 
goods  outside  by  means  of  a  transparent  medium. 

Another  question  of  some  nicety  with  regard  to  the  power 
of  acquiring  rights  to  light  has  reference  to  the  ac-  Extraordi- 
quisition  of  rights  to  light  for  purposes  of  an  unusual  fffr'^gjefld 
or  extraordinary  character,  or  for  purposes  requiring  purposes. 
an  unusual  amount  of  light.  The  law  on  this  subject  is  not 
very  clear,  but  it  would  seem  from  the  following  case  that  a 
right  to  extraordinary  light  may  be  acquired  by  prescription, 
if  the  purpose  for  which  it  is  required  has  existed  openly, 
and  to  the  knowledge  of  the  party  against  whom  it  is  claimed, 
for  twenty  years.  Lanfranchi  v.  Mackenzie  "*  was  a  suit  for 
an  injunction  to  restrain  building  in  such  a  manner  as  to  ob- 
struct light.  The  plaintiffs  were  silk  merchants,  and  the  win- 
dow said  to  be  darkened  belonged  to  the  sample-room  of  their 
warehouse.  It  was  said  by  the  plaintiffs  that  a  steady  uni- 
form light  was  necessary  for  a  room  used  as  a  sample-room  for 
the  purpose  of  examining  raw  silk,  and  that  the  room  had, 
prior  to  the  building,  enjoyed  a  good  steady  light,  well-suited 
for  the  purpose,  and  that  a  considerable  change  for  the  worse 
had  ensued  in  consequence  of  the  building.  It  is  to  be  ob- 
served that  Malins,  V.  C,  in  his  judgment,  treats  the  right 
to  hght  gained  by  prescription  as  still  depending  upon  the  pre- 
sumption of  a  gi-ant,  ignoring  the  House  of  Lords'  decision  in 
the  case  of  Tapling  v.  Jones,  of  which  much  has  already  been 
said.     After  considering  the  evidence,  he  continued:  "Then 

1  come  to  the  second,  and  perhaps  the  still  more  important 
question,  whether  I  should  be  justified  in  interfering  upon  the 
ground  of  the  extraordinary  purpose  to  which  this  room  has 
been  applied.  Now,  in  order  to  arrive  at  a  conclusion  upon 
that  subject,  I  think  one  must  look  a  little  at  the  principles 

"•  L.  R.  4  Eq.  421  ;  36  L.  J.  Ch.  518;  Herz  v.  Union  Bank  of  London, 

2  Gif.  686. 


218  ACQUISITION   OF   EASEMENTS. 

upon  which  this  rule  as  to  ancient  lights  is  established.  Mr. 
Glasse  has  referred  me  to  a  case  of  Jones  v.  Tapling,  and  has 
argued  that  it  now  depends  not  on  the  common  law  or  the  an- 
cient principle,  but  upon  the  statute.  I  do  not  understand 
the  statute  to  have  made  any  difference.  I  only  read  the  stat- 
ute as  meaning  this  (and  I  believe  it  has  been  uniformly  so 
read),  that  there  was  no  absolute  period  theretofore,  but  now 
the  period  is  fixed  at  twenty  years."  .  .  .  .  "  The  cases  since 
that  statute  has  proceeded  upon  the  same  principle  as  before  ; 
namely,  that  in  order  to  establish  the  right  to  an  ancient  light 
you  must  show  that  there  has  been  an  undisturbed  peaceable 
enjoyment.  Mr.  Watkin  Williams  put  it,  I  think,  with  per- 
fect accuracy  in  his  argument.  There  must  be  an  open,  peace- 
able, undisturbed  enjoyment  for  the  period  of  twenty  years. 
Now  what  is  this  enjoyment?  If  a  man  has  the  use  of  a 
window  for  ordinary  purposes,  he  is  entitled  to  have  it  for  all 
the  purposes  for  which  he  has  enjoyed  it ;  but  it  does  not  fol- 
low that  because  he  has  used  it  for  a  particular  purpose  for 
less  than  twenty  years  that  he  therefore  can  establish  his  right 
to  such  particular  user  for  that  particular  period."  ....  "As 
I  understand  the  law,  and  as  I  intend  to  act  on  it,  it  is  this, 
that  unless  you  can  show  there  has  been  that  open,  uninter- 
rupted enjoyment  of  the  light  in  the  manner  in  which  it  is  at 
present  enjoyed  for  twenty  years,  there  is  no  right  whatever 
to  interfere  with  the  proceedings  of  the  neighbor.  Now  in 
this  case  it  has  been  argued,  and  I  think  Mr.  Glasse  carried 
his  argument  to  that  extent,  that,  assuming  for  the  sake  of  the 
argument  there  would  be  no  right  in  the  plaintiff  to  come  for 
the  interference  of  the  court  on  the  ground  of  the  ordinary 
use  of  this  property,  directly  it  is  turned  to  an  extraordinary 
use  —  such  as  a  room  for  a  painter,  for  an  artist,  or  for  exam- 
ining diamonds  by  a  diamond  merchant,  or,'  as  in  the  present 
case,  examining  silks  by  a  silk  merchant  —  you  have  a  right 
so  to  interfere  with  the  proceedings  of  the  neighbor,  that  a 
building  which  he  might  have  erected,  if  it  had  not  been  for 
this  particular  use  of  the  light,  he  has  no  longer  a  right  to 
erect.  But  then  the  rule  comes  into  operation  that  it  must  be 
an  open,  well   known,  and  uninterrupted  user."     The  vice 


LIGHT.  219 

chancellor  ultimately  said  that  user  of  light  for  an  extraor- 
dinary purpose  for  twenty  years  would  establish  the  right 
against  all  persons  who  had  a  reasonable  knowledge  of  it,  but 
that  it  was  unnecessary  to  say  what  would  be  the  result  if  the 
party  against  whom  the  right  was  claimed  was  not  aware  of 
the  extraordinary  purpose  for  which  the  light  was  used.  It 
should  be  particularly  remembered,  when  reading  this  judg- 
ment, that  the  vice  chancellor  starts  with  the  assumption 
that  the  old  principle  of  presumption  of  a  grant  was  not  ab- 
rogated by  the  Prescription  Act,  for  if,  according  to  the  prin- 
ciple laid  down  by  the  House  of  Lords  in  Tapling  v.  Jones,  the 
right  to  light  now  depends  entirely  on  the  statute,  and  not  on 
any  presumption  of  a  grant,  it  would  seem  that  twenty  years 
actual  user  of  light  for  a  particular  and  extraordinary  purpose 
would  confer  a  right  to  the  extraordinary  amount  of  light, 
notwithstanding  the  servient  owner  was  ignorant  of  the  par- 
ticular purpose  for  which  the  light  was  used. 

Whatever  may  be  the  law  relating  to  prescriptive  rights  to 
light  for  unusual  purposes,  a  right  to  an  extraordinary  quan- 
tity of  light  for  a  particular  purpose  may  doubtless  be  ac- 
quired by  grant,  actual  or  implied  ;  and  if  a  person  carries  on, 
or  is  about  to  carry  on,  a  particular  business,  requiring  an  un- 
usual quantity  or  quality  of  light,  to  the  knowledge  of  a  lessor 
or  vendor  of  a  house,  who  lets  or  sells  the  house  for  that  pur- 
pose, a  grant  of  right  to  that  light  will  probably  be  implied 
against  the  lessor  or  vendor." 

One  other  point  may  be  gleaned  from  the  judgment  in  the 

case  of  Lanfranchi  v.   Mackenzie,  namely,  that   no    ,.  ,    . 

.  Light  in- 

right  can  be  acquired  that  the  amount  of  light  ac-  creased  by 

customed  to  enter  a  window  shall  not  be  increased 
by  reflection.  It  appeared  in  that  case  that  as  the  sun,  to- 
wards the  afternoon',  got  round  to  the  west,  the  light  struck 
the  heightened  part  of  the  opposite  buildings,  and  from  that 
time  an  increased  amount  of  light  was  thrown  into  the  oppo- 
site windows,  and  that  this  reflected  light  was  glaring  and 
unsteady,  and  consequently  unsuited  for  the  purpose  of  exam- 
ining the  silks  in  the  accustomed  manner.  The  vice  chan- 
"  Herz  V.  Union  Bank  of  London,  2  Gif.  686. 


220  ACQUISITION   OF   EASEMENTS. 

cellor  said  that  no  case  had  ever  occurred  in  which  the  court 
had  interfered  to  prevent  a  person  erecting  a  building,  the 
effect  of  which  would  be  to  increase  the  quantity  of  light,  and 
that  he  apprehended  no  such  case  could  occur  ;  at  all  events, 
he  would  not  be  the  first  judge  to  come  to  such  a  decision. 

AMERICAN   PRESCRIPTION    ACTS. 

In  some  American  states  a  brief  Prescription  Act,  as  it  maj'- 
be  called,  exists,  declaring  that  "  no  person  shall  acquire  a  right 
of  way,  or  other  easement,  from,  in,  upon,  or  over  the  land  of 
another,  by  the  adverse  use  or  enjoyment  thereof,  unless  such 
use  has  been  continued  uninterrupted  for  twenty  years."  ^ 
It  has  frequently  been  argued  that  such  statutes  impliedly 
give  a  right  to  light  when  the  use  has  continued  that  length 
of  time ;  but  it  has  uniformly  been  held  by  those  courts  which 
deny  the  acquisition  of  such  right  at  common  law,  that  it 
could  not  be  gained  by  force  of  the  statute  ;  that  the  statute 
did  not  mean  to  create  new  rights  affirmatively,  but  rather  to 
restrict  and  limit,  if  need  be,  those  which  would  otherwise  be 
acquired  at  common  law.^ 

SUPPORT. 

It  has  already  been  explained  that  the  right  to  support  for 
Easements  ^^^nd,  while  it  remains  in  its  natural  condition,  is  a 
of  support,  natural  right,  and  that,  as  such,  it  is  a  right  incident 
to  the  ownership  of  land,  and  is  not  acquired  by  any  act  of 
man.  Of  easements  connected  with  support  there  are  several 
kinds  —  as  the  right  to  support  for  land  when  its  natural  con- 
dition has  been  changed  by  excavation,  for  instance  ;  and  the 
right  to  support  for  buildings  ;  but,  besides  these,  there  is  a 
right  which  may  be  acquired,  entitling  a  land  or  mine-owner 
to  remove  the  support  to  which  another  landowner  would  or- 
dinarily be  entitled  by  natural  right.  This  right,  antagonistic 
to  the  natural  right,  is  also  an  easement. 

These  easements  may  generally  be  acquired  in  the  same 
manner  as  others  —  that  is,  by  grant,  express  or  implied,  or 

1  Mass.  Gen.  Sts.  c.  90,  §  33. 

2  Pierre  v.  Fernald,  26  Me.  436  ;  Stein  i;.  Hauck,  56  Ind.  65. 


SUPPORT.  221 

by  prescription  ;  but  it  will  be  shown  that  there  are  some  eases 
in  which  the  easement  can  be  acquired  by  grant  jj^^  ^^_ 
only,  and  not  by  prescription.  As  regards  prescrip-  quired. 
tion,  it  is  questionable  in  all  cases  whether  the  right  to  sup- 
port is  an  "  easement "  within  the  meaning  of  the  Prescrip- 
tion Act,  so  as  to  be  capable  of  acquisition  under  the  statute, 
or  whether  the  right  can  be  acquired  by  prescription  at  com- 
mon law  alone.  And  it  has  recently  been  decided  it  cannot.^ 
This  point  has  already  been  considered  in  another  part  of  this 
work." 

Whenever  land  is  sold,  there  is  an  implied  grant  of  right  to 
support  for  that  land  by  the  vendor,  if  he  reserves   ^    y^^^ 
either  the   subiacent   mines  or   the   adioining  soil,   gnvnton 

_     .  ,.  ,      ,  ...        1        1         ,-.•'..  sale  of  land 

It  is  undisputed  that  if  the  land  sold  is  in  its  nat-  reserving 
ural  condition  —  that  is,  unexcavated  and  without 
any  artificial  weight  imposed  by  buildings  —  the  purchaser  is 
entitled  by  natural  right  to  support  for  his  land.  The. nat- 
ural right  is  good,  not  only  against  the  vendor  but  against 
strangers,  who  possess  the  land  adjacent,  or  the  subjacent 
mines,  but  the  grant  of  right  to  support  is  additional  to  the 
natural  right,  and  can  be  implied  against  the  vendor  alone. 
If  a  man  makes  a  grant  of  surface  land,  and,  with  it,  of  the 
use  and  benefit  to  be  derived  from  its  possession,  he  is  guilty 
of  an  act  in  derogation  from  his  grant  if  he  removes  the  subsoil 
and  destroys  the  possibility  of  enjoyment,  and  he  is  liable  to 
an  action  for  any  damage  he  may  cause.  It  should  also  be  re- 
marked that  a  reservation  of  subj'acent  mines,  on  a  sale  of 
land,  with  power  for  the  vendor  to  gain  the  minerals,  does 
not,  in  the  absence  of  express  stipulation,  deprive  the  pur- 
chaser either  of  his  natural  right  to  support  for  his  land,  or 
the  benefit  of  the  implied  grant ;  for  the  meaning  of  the  reser- 
vation is  that  all  the  minerals  may  be  excavated  by  the  ven- 
dor of  the  land,  but  that  the  purchaser  of  the  surface  is  not 
to  be  deprived  of  the  use  of  his  ground  by  removal  of  all 

1  See  Angus  v.  Dalton,  3  Q.  B.  D.  85  ;  on  appeal,  4  lb.  162,  the  prin- 
ciple was  not  impugned,  but  a  majority  of  the  court  thought  it  not  ap- 
plicable to  the  particular  facts  of  that  case.     See  post. 

"Ante,  p.  140. 


222  ACQUISITION   OF   EASEMENTS. 

support.^  And  this  reasonable  rule  has  been  adopted  in 
America.^  A  deed,  however,  may  be  framed  in  such  a  man- 
ner as  to  empower  the  owner  of  the  minerals  to  remove  the 
whole  of  them,  without  subjecting  himself  to  any  liability  for 
damage  done  to  the  surface  by  subsidence  or  subject  to  pay- 
ment of  compensation  for  injury.^ 

Though  the  law  as  to  right  to  support  is  thus  pretty  clear 
im  lied  wheu  the  surface  land  is  sold  and  the  subjacent  soil 
reservation  jg  reserved,  it  seems  far  from  clear  whether  there  is 
subsoil  re-  any  such  right  for  the  surface  owner  if  the  subsoil  is 
surface  ^  granted'  away  and  the  surface  is  reserved.  Ques- 
'^°*^"  tions  of  this  kind  are  most  likely  to  arise,  and  in 

fact  have  arisen,  in  the  case  of  mining  leases,  which  of  course 
are  very  numerous,  and  it  is  somewhat  remarkable  that,  con- 
sidering the  number  of  these  leases  that  is  made  and  how 
frequently  subsidence  of  the  surface  over  the  mines  must 
occur,  that  so  few  cases  have  been  brought  before  the  courts 
for  the  determination  of  the  respective  rights  of  the  surface 
owners  and  the  mining  lessees.  If  the  subsoil  be  separated 
by  grant  from  the  surface,  there  seems  no  doubt  that  primd 
facie  the  same  natural  right  to  support  exists,  whether  it  is  the 
surface  or  the  subsoil  which  is  granted  ;  but  if  the  subsoil  is 
granted  and  the  surface  is  reserved  it  is  a  matter  of  consider- 
able doubt  whether  there  is  any  implied  grant  by  the  pur- 
chaser of  the  subsoil  of  a  right  to  support  for  the  surface  in 
addition  to  the  natural  right,  that  is  assuming  there  are  no 
words  in  the  deed  affecting  the  question.     There  is  no  doubt 

p  Harris  v.  Ryding,  5  M.  &  W.  60 ;  8  L.  J.  N.  S.  Exch.  181;  Smart  v. 
Morton,  5  E.  &  B.  30 ;  24  L.  J.  Q.  B.  261;  Proud  v.  Bates,  34  L.  J.  Ch. 
406  (not  elsewhere  reported). 

^  See,  exactly  in  point,  Jones  v.  Wagner,  66  Penn.  St.  429  (1870)  ; 
Horner  v.  Watson,  79  lb.  243;  Coleman  v.  Chadwick,  80  lb.  81,  which 
also  held  that  a  custom  to  the  contrary  is  invalid.  And  see  Hext  v.  Gill, 
L.  R.  7  Ch.  App.  699;  Smith  v.  Darby,  L.  R.  7  Q.  B.  716  ;  Marvin  v. 
Brewster  Iron  Mining  Co.  55  N.  Y.  538,  containing  a  valuable  opinion 
by  Judge  Folger, 

9  Aspden  v.  Seddon,  L.  R.  10  Ch.  App.  394;  44  L.  J.  Ch.  359.  See, 
also,  Same  v.  Same,  1  Exch.  D.  496;  Ryckman  v.  Gillis,  57  N.  Y.  68; 
Caldwell  V.  Fulton,  31  Penn.  St.  475. 


SUPPORT.  223 

that  it  may  be  a  matter  of  very  considerable  moment  to  the 
grantor  whether  there  is  any  such  right  reserved  to  him  by 
implied  grant  or  not,  for  the  natural  right  to  support  is  lim- 
ited to  the  support  of  the  soil  in  its  natural  state,  and  does 
not  apply  to  any  buildings  with  which  the  soil  is  weighted, 
but  if  there  is  any  such  right  by  implied  grant  or  reservation, 
it  would  relate  alike  to  the  land  and  to  any  buildings  that  had 
been  erected  upon  it.  Considering  the  matter  in  its  simplest 
form,  as  a  mere  grant  of  the  subsoil,  apart  from  any  question 
of  mining,  it  would  seem  on  principle,  and  by  analogy  to 
other  cases  of  grants,  that  no  right  to  support  for  the  surface 
is  reserved  to  the  grantor  by  implication  and  in  addition  to 
his  natural  right  to  support ;  for  if  a  man  makes  an  absolute 
and  unlimited  grant  of  the  subsoil,  why  is  it  to  be  implied 
that  his  grant  is  saddled  with  a  material  restriction,  and  that 
the  grantor  is  not  to  use  that  subsoil  in  any  manner  that  it  is 
to  his  interest  to  use  it  ?  To  allow  a  grantor  to  set  up  such  a 
restriction  would  be  to  allow  him  to  derogate  from  his  grant.^ 
The  same  reason,  moreover,  exists  against  such  an  implied 
reservation  as  that  which  prevents  a  grantor  of  a  house  build- 
ing on  land  he  reserves  so  as  to  obstruct  the  lights  of  the 
house.'"  In  cases  of  mining  leases,  however,  which  nji^jn- 
are  grants  for  the  express  purpose  of  the  removal  of  leases. 
the  subsoil,  the  respective  rights  of  the  parties  as  regards  the 
removal  of  the  support  from  the  surface  usually  depend  in 
each  case  upon  the  terms  of  the  lease  ;  but  it  may  be  taken 
as  the  general  rule  of  law,  that  if  there  is  nothing  in  a  lease  of 
mines  to  oblige  the  lessee  to  leave  sufficient  coal  or  other  ma- 
terial for  the  support  of  the  surface  land,  he  is  under  no  obli- 
gation to  do  it.  Eadon  v.  Jeffcock*  was  a  case  in  which  this 
question  arose  and  the  law  was  very  fully  considered,  and  the 
principles  to  be  gathered  from  that  case  are,  that  when  the 
property  in  the  soil  and  in  the  subjacent  minerals  belongs  to 

1  See  Siddons  v.  Short,  2  C.  P.  D.  672. 

'■Ante,  p.  191. 

»  L.  R.  7  Exch.  379  ;  42  L.  J.  Exch.  36;  Dugdale  v.  Robertson,  3  K.  &  J. 
695;  Taylor  v.  Shafto,  8  B.  &  S.  228;  Smith  v.  Darby,  L.  R.  7  Q.  B.  716; 
42  L.  J.  Q.  B.  140. 


224  ACQUISITION   OF  EASEMENTS. 

different  persons,  and  there  is  no  deed  or  otber  matter  to  in- 
fluence the  rights  of  the  parties,  each  must  use  his  own  prop- 
erty in  such  a  manner  as  not  to  injure  the  other,  and  the 
right  to  this  mutual  protection  is  a  natural  right.  Included 
in  this  natural  right  is  the  right  of  the  surface  owner  to  sup- 
port for  his  land  so  long  as  it  remains  in  its  natural  condition. 
If,  however,  the  owner  of  land  grants  a  mining  lease  and 
expressly  gives  power  to  the  lessee  to  remove  the  subjacent 
minerals,  it  becomes  a  question  which  can  be  determined  only 
by  the  terms  of  the  lease,  whether  the  lessee  is  to  be  entitled 
to  remove  the  whole  of  the  subjacent  minerals,  regardless  of 
the  damage  he  may  do  to  the  surface  by  causing  it  to  subside, 
or  whether  he  is  bound  to  leave  pillars  of  coal  or  to  put  arti- 
ficial supports  to  keep  the  surface  in  its  natural  state. 

While  considering  the  right  of  an  owner  of  subsoil  to  ex- 
No  right  cavate  in  such  a  manner  as  to  let  down  and  damage 
of  prescdp-  ^^6  surface  land  by  subsidence,  it  is  proper  to  notice 
tion  to  de-   ^]j^^  such  an  easement  cannot  be  acquired  under  a 

stroy  sup-  ^  ^ 

port.  custom,  for  it  would  be  unreasonable ; '  neither  can 

it  be  acquired  by  prescription,  for  the  act  of  digging  is  a  law- 
ful act  which  the  person  entitled  to  support  has  no  power  of 
resisting,  and  the  excavation  of  minerals  by  a  mine-owner 
does  not  require  the  performance  of  any  act  on  the  servient 
tenement,  nor  that  the  servient  owner  shall  refrain  from  do- 
ing anything  on  his  own  land,  and  it  has  been  shown  that 
under  such  circumstances  no  prescriptive  title  can  arise,  be- 
cause no  grant  of  the  right  can  be  presumed." 

A  right  to  excavate  and  thereby  to  destroy  the  support  to 
which  a  surface  owner  has  a  natural  right  may  of  course  be 
acquired  under  an  act  of  parliament,  and  rights  of  this  kind 
frequently  arise  under  Inclosure  Acts  and  awards  made  under 
their  authority." 

A  copyholder  cannot  bind  his  copyhold  land  by  a  grant  of 

«  Hilton  V.  Earl  of  Granville,  5  Q.  B.  701;  13  L.  J.  Q.  B.  193;  Wake- 
field V.  Duke  of  Buccleuch,  L.  R.  4  Eq.  613;  36  L.  J.  Ch.  763;  Blackett 
V.  Bradley,  1  B.  &  S.  940;  31  L.  J.  Q.  B.  65. 

«  Blackett  t;.  Bradley,  1  B.  &  S.  940;  31  L.  J.  Q.  B.  65. 

"  Rowbotham  v.  Wilson,  8  H.  L,  C.  348 ;  30  L.  J.  Q.  B.  49 ;  Roberts  v. 
Haines,  7  E.  &  B.  625  ;  27  L.  J.  Exch.  49. 


SUPPORT.  225 

right  to  an  adjoining  landowner  to  excavate  and  remove  all 
necessary  support,  and  such  a  grant  is  void  as  against  a  sub- 
sequent freeholder  if  the  land  is  enfranchised ; "'  and  it  is  ap- 
prehended that  such  a  grant  would  also  be  void  as  against 
the  land  previously  to  enfranchisement. 

There  is  an  exception  of  an  important  character  to  the  rule 
of  law  entitling  a  purchaser  of  land  to  support,  j,^^^  y^^. 
The  Lands  and  Railways  Clauses  Consolidation  Railway 
Acts,  1845,  made  various  provisions  relative  to  the  Consoiida- 
acquisition  of  lands  for  the  making  of  railways  ;  ^'""^  ^*" 
and  among  other  things,  it  is  enacted  by  the  latter  act  (sec- 
tions 77,  78,  and  79)  that  railway  companies  shall  not  be  en- 
titled to  any  mines  under  land  purchased  by  them,  and  that 
subjacent  mines  shall  be  deemed  to  be  excepted  out  of  con- 
veyances of  lands  unless  they  are  expressly  conveyed  ;  that  if 
the  mine-owners  are  at  any  time  desirous  of  working  the 
mines,  tliey  are  to  give  notice  to  the  companies  thirty  days 
before  commencing  operations,  and  the  companies  may  then 
cause  the  mines  to  be  inspected  ;  if  the  working  would  be 
likely  to  produce  injury  to  the  railways,  the  owners  are  pro- 
hibited working  the  mines,  but  the  companies  must  pay  them 
compensation  for  their  loss  ;  but  if  the  companies  are  unwill- 
ing to  purchase  the  mines  the  owners  may  work  them  in  a 
manner  proper  and  necessary  for  the  beneficial  working,  ac- 
cording to  the  usual  manner  of  working  mines  in  the  district 
where  they  are  situate.  These  provisions  have  given  rise  to  a 
very  important  question  as  to  the  right  to  support,  for  it  has 
been  urged  on  the  part  of  railway  companies  that  when  mine- 
owners  have  sold  surface  land  to  them,  they  are  entitled  to 
the  same  support,  both  by  natural  right  and  by  implied  grant, 
as  any  other  purchaser  of  land  ;  but,  after  much  argument,  it 
has  been  determined  that  companies  were  by  the  statute 
placed  on  an  entirely  different  footing  from  ordinary  pur- 
chasers, for  that  it  was  obviously  the  intention  of  the  legisla- 
ture to  create  a  new  relation  between  vendors  and  purchasers 
under  the  act,  and  to  get  rid  of  all  the  ordinary  law  on  the 
subject ;  that  it  was  highly  beneficial  for  companies  to  be  en- 

«>  Richards  v.  Harper,  L.  R.  1  Exch.  199;  35  L.  J.  Exch.  130. 
15 


226  ACQUISITION   OF   EASEMENTS. 

abled  to  purchase  the  surface  of  land  only,  without  being 
compelled  to  buy  the  mines  also,  and  that  the  legislature  in- 
tended the  land  to  be  dealt  with  just  as  if  there  were  no 
mines  to  be  considered,  so  that  when  the  owners  wished  to 
work  the  mines  they  should  be  just  in  the  same  position  as  if 
they  had  never  sold  any  part  of  their  land  to  the  companies.^ 
The  same  principle  is  applicable  to  sales  of  land  under  other 
acts  of  parliament,  if  their  provisions  are  similar  in  character 
to  those  of  the  Railways  Clauses  Act,  1845. 

If,  prior  to  the  conveyance  of  surface  land  to  a  company 
under  the  Railways  Clauses  Act,  Cockburn,  C.  J.,  remarked, 
in  the  Exchequer  Chamber,"  there  was  any  separation  of  the 
surface  land  from  the  minerals,  the  right  of  support  which 
then  existed  would  no  doubt  belong  to  the  company. 

If  water,  from  natural  causes  or  from  accidents,  finds  its 
Support  way  underground,  either  into  excavations  or  into  or- 
dereround  binary  subterranean  channels,  it  frequently  affords 
water.  Considerable  support  to  the  soil  above  by  its  natural 

upward  pressure.  When  this  is  so  it  becomes  an  important 
question  whether  the  owner  of  the  surface  has  a  natural  right 
or  can  acquire  a  right  to  that  support,  so  as  to  entitle  him  to 
restrain  the  owners  of  adjoining  land  or  subjacent  mines  from 
draining  or  pumping  away  the  water.  It  is  now  decided  that 
he  neither  has,  nor  can  he  acquire  (except  possibly  by  grant), 
any  such  right.  The  first  case  in  which  this  question  arose 
was  Elliot  V.  North  Eastern  Railway  Company,^  in  which  it 
appeared  that  there  was  an  ancient  shaft  leading  down  to  a 

==  Great  Western  Railway  Co.  v.  Bennett,  L.  R.  2  H.  L.  27;  36  L.  J. 
Q.  B.  133;  Great  Western  Railway  Co.  d.  Fletcher,  5  H.  &  N.  689;  29 
L.  J.  Exch.  253;  London  and  North  Western  Railway  Co.  v.  Ackroyd, 
31  L.  J.  Ch.  588  (not  in  the  Reports);  Stourbridge  Canal  Co.  v.  Earl  of 
Dudley,  3  E.  &  E.  409;  30  L.  J.  Q.  B.  108  ;  Dudley  Canal  Co.  v.  Graze- 
brook,  1  B.  &  Ad.  59;  8  L.  J.  K.  B.  361. 

f  Great  Western  Railway  Co.  v.  Fletcher,  5  H.  &  N.  at  p.  689. 

'  10  H.  L.  C.  333  ;  32  L.  J.  Ch.  402.  It  has  been  already  shown  that, 
thoujrh  there  is  no  natural  right  to  support  for  surface  land  by  underground 
water,  yet  that,  if  underground  water  supports  the  water  of  a  flowing 
stream,  it  cannot  be  drawn  off  so  as  to  cause  a  diminution  of  the  water  of 
the  stream.    Ante,  p.  40. 


SUPPORT.  227 

coal-pit,  in  which  there  were  sundry  horizontal  passages  lead- 
ing under  adjoining  land,  and  that  a  river,  having  overflowed 
its  banks,  filled  the  shaft  and  the  passages  with  water,  and 
then  the  natural  consequence  arose  that  there  was  a  certain 
upward  pressure  from  the  water,  by  which  the  land  was  to  a 
considerable  degree  supported.  It  was  held  that,  under  the 
circumstances  of  the  case,  no  right  could  be  acquired  to  this 
kind  of  support,  for  that  the  flooding  was  accidental,  and  that 
it  was  only  reasonable  to  suppose  that  at  some  future  time 
the  owner  would  resume  the  working  of  the  mine.  A  some- 
what similar  point  arose  in  the  recent  case  of  Popplewell  v. 
Hodkinson,"  in  which  the  facts  were  that  the  plaintiff  was 
owner  of  some  land  of  a  wet  and  spongy  character,  upon  which 
he  built  some  houses  of  a  very  bad  construction.  The  de- 
fendant was  a  builder,  and  by  excavating  in  the  adjoining 
land  for  the  purpose  of  building  a  church,  drained  the  water 
which  stood  under  the  land  of  the  plaintiff,  the  surface  of 
which  sank  in  consequence,  and  the  houses  cracked.  The 
question  in  the  action  was  whether  the  defendant  was  respon- 
sible for  the  injury.  It  was  held  in  the  Exchequer  Chamber 
that  he  was  not,  for  that  there  could  be  no  right  natural  or  by 
prescription  that  the  water  should  not  be  withdrawn,  though 
it  might  happen  that  such  a  right  could  be  acquired  if  the  act 
of  draining  would  be  in  derogation  of  a  grant  express  or  im- 
plied. 

SUPPORT   FOR    BUILDINGS. 

The  easement  of  support  for  buildings  is  of  two  kinds, 
namely,  support  from  the  subjacent  and  adjacent  soil,  and 
support  from  adjoining  buildings  ;  and  some  difference  exists 
between  these  rights,  inasmuch  as  it  is  doubtful  whether  a 
right  to  lateral  support  for  one  building  from  another  can  be 
acquired  by  prescription. 

A  right  to  support  for  buildings,  both  from  the  subjacent 
and  adjacent  soil  and  from  adjoining  buildings,  may 
be  acquired  by  grant,  express  or  implied.    This  right   implied 
arises  by  implied  grant,  in  the  absence  of  express   ^^^^  ' 
stipulation,  in  every  case  where  an  owner  of  adjoining  houses, 
«  L.  R.  4  Excb.  248  ;  38  L.  J.  Exch.  126. 


228  ACQUISITION   OF  EASEMENTS. 

or  of  houses  and  land,  severs  the  property  by  sale,  for  in  every 
such  case  rights  to  support  are  granted  by  implication,  by  the 
vendor  and  purchasers  respectively,  for  the  preservation  of  the 
buildings  belonging  to  each  other.* 

IN    AMERICAN    COURTS 

the  same  principle  is  adopted.  Partridge  v.  Gilbert,^  in  the 
Party  ^^^  York  Court  of  Appeals,  1857,  is  the  leading 

walls.  case  on  that  subject.     It  was  there  held,  after  care- 

ful consideration,  that  if  the  owner  of  two  adjoining  houses, 
having  a  common  party  wall,  conveys  the  houses  to  different 
grantees,  making  the  centre  of  the  wall  the  dividing  line  be- 
tween them,  each  grantee  acquires  a  right  of  supporting  his 
house  by  the  part  of  the  wall  conveyed  to  the  other ;  which 
right  remains  so  long  as  the  wall  continues  sufficient  for  that 
purpose,  and  the  buildings  continue  to  need  and  enjoy  such 
support ;  but  if  one  house  becomes  dilapidated  and  unsafe  for 
occupation,  and  the  removal  of  the  other  walls  thereof  would 
occasion  the  destruction  of  the  whole  party  wall,  the  owner  of 
the  dilapidated  building  may,  after  reasonable  notice,  take 
down  the  whole  party  wall  and  erect  a  new  one  in  its  place, 
giving  the  same  support  to  the  other  as  formerly ;  and  if  he 
occupy  no  unreasonable  time  in  so  doing,  and  uses  proper  care 
and  skill,  he  is  not  responsible  to  the  other  for  damages  to  his 
house  from  exposure  to  the  weather,  or  loss  of  rent  or  business 
during  the  interval.  But  if  the  party  wall  needs  no  repair, 
and  one  owner  wishes  to  build  it  higher,  or  make  additions  to 
it,  he  must  do  so  at  his  peril,  and  he  is  liable  if  injury  results 
to  the  other,  in  so  doing.^     But  the  erection  of  a  party  wall 

^  Richards  v.  Rose,  9  Exch.  218;  23  L.  J.  Exch.  3;  Murchie  v.  Black, 
19  C.  B.  N.  S.  190;  34  L.  J.  C.  P.  337.  See,  also,  the  recent  case  of  Asp- 
den  V.  Seddon,  1  Exch.  D.  496. 

1  15  N.  Y.  (1  Smith),  601,  affirming  the  decision  below,  in  8  Duer,  185. 
See,  also,  Crawshaw  v.  Sumner,  56  Mo.  517;  Dowling  v.  Hennings,  20 
Md.  179;  Rogers  v.  Sinsheimer,  50  N.  Y.  646;  Eno  v.  Del  Vecchio,  4  Duer, 
53;  Webster  v.  Stevens,  5  Duer,  553.  But  see  Hieatt  r.  Morris,  10  Ohio 
St.  523. 

2  Brooks  V.  Curtis  50  N.  Y.  639.  And  see  Eno  v.  Del  Vecchio,  6  Duer, 
17. 


SUPPORT.  229 

by  an  agreement  between  two  adjoining  tenants  for  years, 
whose  leases  do  not  authorize  the  construction  of  a  party  wall, 
does  not  bind  the  lessor,  and  he,  after  the  lease  has  expired* 
deals  with  the  property  as  if  no  such  wall  had  been  erected, 
and  so  may  his  grantee.^  And  although  the  deed  of  one  house 
may  include  the  whole  party  wall,  and  even  two  inches  be- 
yond, yet  the  other  grantee  obtains  an  easement  in  the  wall, 
if  it  be  a  party  wall,  and  in  the  two  inch  space  beyond  it.^ 
And  if  it  be  a  solid  party  wall,  one  owner  has  not  a  right  to 
take  down  the  part  on  his  side  and  rebuild  it  separated  from 
the  other  part,  and  connected  with  it  by  ties  or  bricks 
*'  toothed  into  "  it ;  for  that  may  not  be  as  strong  as  the  orig- 
inal solid  wall,  to  which  the  other  was  entitled.^ 

A  right  to  support  for  buildings  from  adjacent  land  or  sub- 
jacent soil  may  be  acquired  by  prescription  at  com- 
mon  law,  though  probably,  as  was  before  pointed  out,  prescrip- 
the  right  to  support  is  not  an  "  easement "  within 
the  meaning  of  the  Prescription  Act,  so  as  to  render  it  capa- 
ble of  being  acquired  under  the  statute.^  It  was  also  shown 
that  a  question  has  been  raised  whether  the  natural  right  to 
support  for  surface  land  from  the  subjacent  soil  does  not  ex- 
tend to  buildings  erected  on  the  land  ;  there  is,  however,  not 
sufficient  authority  to  support  that  view,  and  the  probability 
is  that  it  would  not  be  upheld  if  the  point  were  fully  argued  ; 
but  there  can  be  no  doubt  that  a  right  to  support  from  sub- 
jacent and  adjacent  soil  can  be  gained  by  prescription  at  com- 
mon law,  and  that  the  law  will  recognize  the  right  when 
buildings  have  stood  for  twenty  years,  if  they  have  received 
support  to  the  knowledge  both  of  the  owner  of  the  buildings 
and  of  the  land  during  that  period/     If  buildings  are  situated 

1  Webster  v.  Stevens,  5  Duer,  553. 

2  Rogers  v.  Sinslieimer,  50  N.  Y.  646.  One  who  builds  a  party  wall 
partly  on  another's  land,  with  his  knowledge  and  consent,  acquires  a  right 
or  easement  to  continue  it.     Miller  v.  Brown,  33  Ohio  St.  547. 

8  Phillips  V.  Bordman,  4  Allen,  147. 

*  See  Angus  v.  Dalton,  3  Q.  B.  D.  84. 

«  Hide  V.  Thornborough,  2  Car.  &  K.  250;  Partridge  v.  Scott,  3  M.  &  W. 
220  ;  7  L.  J.  N.  S.  Exch.  101 ;  Rogers  v.  Taylor,  2  H.  &  N.  828  ;  27  L.  J. 
Exch.  173. 


230  ACQUISITION   OF  EASEMENTS. 

on  ground  from  under  which  the  minerals  have  been  exca- 
vated, so  that  they  require  more  support  from  the  adjacent 
soil  tlian  they  otherwise  would,  a  right  to  support  cannot  be 
established  unless  it  is  shown  that  the  excavations  have 
existed  for  twenty  years.  This  point  arose  in  the  case  of  Part- 
ridge V.  Scott,**  in  which  Alderson,  B.,  who  delivered  judg- 
ment, treated  the  right  to  support  by  prescription  as  originat- 
ing in  a  supposed  grant ;  but  whether  any  grant  can  be 
presumed  in  cases  of  right  to  support  will  be  considered  pres- 
ently. The  learned  judge  there  said  that  if  the  land  on  which 
the  plaintiff's  house  stood  had  not  been  previously  excavated, 
the  defendants  might  without  injury  have  worked  their  coal 
to  the  extremity  of  their  own  land,  and  if  the  plaintiff  had 
not  built  his  house  on  excavated  ground,  the  mere  sinking 
of  the  ground  would  have  been  without  injury.  The  plain- 
tiff, therefore,  by  so  building,  produced  the  injury  without 
any  fault  on  the  part  of  the  defendant,  unless  at  the  time,  by 
some  grant,  he  was  entitled  to  additional  support  from  the 
land  of  the  defendant.  He  added  that  no  grant  could  be  in- 
ferred in  the  case  before  the  court,  because,  though  the  house 
had  stood  more  than  twenty  years,  it  did  not  appear  that  the 
coal  under  it  might  not  have  been  excavated  within  twenty 
years,  and  that  no  grant  could  be  inferred  until  after  the 
lapse  of  at  least  twenty  years  from  the  time  when  the  house 
first  stood  on  excavated  ground,  and  was  supported  in  part  by 
the  adjacent  ground  of  the  defendant. 

It  is  somewhat  difficult  to  see  how  any  grant  can  be  pre- 

„  sumed  to  have  been  made  so  as  to  render  a  right  to 

How  can  a  .  ^  ^     . 

grant  be       support  Capable  of    being    gained   by   prescription, 

merely  from  the  circumstance  that  a  house  has  stood 
for  twenty  years  supported  by  the  neighboring  soil.  It  has 
just  been  noticed  that  in  the  case  of  Partridge  v.  Scott,  the 
right  was  treated  by  Alderson,  B.,  as  resulting  from  a  pre- 
sumed grant,  and  it  has  been  so  treated  in  other  instances,  but 
the  point  has  on  several  occasions  received  consideration.  In 
Humphries  v.  Brogden,*  the  difficulty  was  noticed,  for  Lord 

<*  3  M.  &  W.  220 ;  7  L.  J.  N.  S.  Exch.  101. 
«  12  Q.  B.  739;  20  L.  J.  Q.  B.  10. 


SUPPORT.  231 

Campbell,  C.  J.,  in  his  judgment,  remarked :  "  Although 
there  may  be  some  difficulty  in  discovering  whence  the  grant 
of  the  easement  in  respect  of  the  house  is  to  be  presumed,  as 
the  owner  of  the  adjoining  land  cannot  prevent  its  being 
built,  and  may  not  be  able  to  disturb  the  enjoyment  of  it 
without  the  most  serious  loss  or  inconvenience  to  himself,  the 
law  favors  the  preservation  of  enjoyments  acquired  by  the 
labor  of  one  man  and  acquiesced  in  by  another  who  has  the 
power  to  interrupt  them  ;  and  as  on  the  supposition  of  a  grant 
the  right  to  light  may  be  gained  from  not  erecting  a  wall  to 
obstruct  it,  the  right  to  support  for  a  new  building  erected 
near  the  extremity  of  the  owner's  land  may  be  explained  on 
the  same  principle."  This  passage  is  noticed  in  the  subse- 
quent ease  of  Solomon  v.  The  Vintners'  Company,^  and  the 
nature  of  the  right  to  support  for  building  was  there  again 
considered.  The  question  in  that  action  related  to  a  right  of 
support  for  one  building  from  another,  but  Pollock,  C.  B.,  in 
his  judgment,  remarked  that  it  seemed  to  the  court  that,  in 
the  absence  of  all  evidence  as  to  origin  or  grant,  the  only 
way  in  which  such  a  right  could  be  supported  was  that  sug- 
gested by  Lord  Campbell  in  Humphries  v.  Brogden,  namely, 
an  absolute  rule  of  law  similar  to  that  which  is  stated  to  have 
existed  in  the  civil  law. 

THE    AMERICAN    RULE. 

Notwithstanding  the  numerous  English  authorities  supposed 
to  sanction  the  doctrine  of  a  prescriptive  right  for  the  support 
of  buildings,  cited  by  Mr.  Goddard,  it  may  be  more  than 
doubted  whether  such  a  proposition  will  be  established  on  this 
side  of  the  Atlantic.  The  reasons  against  it  are  the  same  as 
those  against  a  prescriptive  right  to  light  and  air,  which,  with 
the  authorities  on  the  subject,  are  given  in  the  preceding  part 
of  this  work.^ 

It  is  true  many  dicta  may  be  found  in  the  American  re- 
ports, sustaining  such  a  doctrine,  and  Judge  Washburn,  in  his 

/  4  H.  &  N.  585  ;  28  L.  J.  Exch.  370. 
^  Ante,  p.  202. 


232  ACQUISITION   OF   EASEMENTS. 

excellent  treatise  on  Easements,^  assumes  it  as  settled  law, 
and  perhaps  it  has  been  generally  so  understood  in  the  profes- 
sion ;  but  if,  as  all  agree,  prescription  rests  for  its  basis  upon 
an  implied  acquiescence  of  the  adverse  party  ;  if,  as  none  deny, 
no  acquiescence  can  be  implied  in  an  act  which  such  adverse 
party  has  no  legal  right  or  remedy  to  prevent ;  and  if,  as  is 
clear,  one  landowner  has  no  legal  power  to  prevent  another 
from  erecting  and  maintaining  a  building  on  his  own  land, 
even  ad  caelum,  it  is  difficult,  if  not  impossible,  to  understand 
how  the  continuance  of  such  a  building  for  twenty,  or  even  a 
hundred  years,  can  raise  a  presumption  of  assent  in  one  who 
had  no  power  or  right  to  dissent.  He  cannot  tear  down  the 
house,  he  cannot  bring  an  action  for  its  erection ;  he  cannot 
even  dig  down  on  his  own  land  and  let  it  fall  before  it  has  ac- 
quired any  supposed  right  from  age,  for  that  would  cause  the 
land  vmder  such  house  to  fall  also,  and  for  that  injury  he 
would  be  immediately  liable  to  an  action,  the  damages  being 
confined  to  the  injury  to  the  land  and  not  to  the  building.  He 
is,  therefore,  powerless  ;  and  yet  it  has  been  supposed  that, 
with  his  arms  bound  and  his  hands  tied,  he  is  legally  assent- 
ing to  an  act  from  which  he  has  no  power  to  dissent. 

The  soundness  of  any  such  doctrine  was  more  than  doubted 
by  the  learned  chief  justice  of  Massachusetts,  in  the  recent 
case  of  Gilmore  v.  Driscoll,^  although  the  point  was  not  nec- 
essarily involved,  since  the  structures  in  that  case  had  not  been 
standing  twenty  years  ;  but  the  question  directly  arose  in 
Georgia,  in  1873,  and  the  existence  of  any  such  principle  was 
emphatically  denied.^ 

1  Ch.  IV.  sec.  1. 

2  122  Mass.  at  p.  207  (1877).  And  see  an  able  article  in  1  Am.  Law 
Rev.  p.  10,  by  F.  V.  Balch,  Esq.,  of  the  Boston  bar. 

3  Mitchell  V.  Mayor,  49  Ga.  19.  After  adverting  to  the  rule,  that  to  au- 
thorize prescription  there  must  be  adverse  enjoyment,  and  that  the  rule 
is  well  applied  to  such  positive  easements  as  ways  and  watercourses, 
Trippe,  J.,  says:  "  But  it  is  difficult,  if  not  impossible,  to  see  how  this  doc- 
trine can  be  made  to  apply  to  those  instances  of  easements,  so  called, 
where  there  is  no  possession  of  anything  belonging  to  another,  no  encroach- 
ment upon  another's  rights,  no  adverse  user,  —  in  fact,  nothing  done 
whatever  against  which  another  could  complain,  or  for  which  an  action 
could  be  brought,  and  no  remedy  existing  whereby  to  prevent  such  a  pre- 


SUPPORT.  233 

There  is  also  reason  to  believe  the  true  doctrine  will  yet 
prevail  in  England.  It  was  recently  much  discussed  in  the 
Queen's  Bench  in  Angus  v.  Dalton.^  It  was  an  action  by  the 
owner  of  a  factory  against  the  defendant  for  excavating  the 
soil  of  an  adjoining  lot  in  such  a  manner  as  to  leave  the 
foundation  of  part  of  the  factory  without  sufficient  lateral 
support,  and  thereby  causing  it  to  fall.  It  appeared  that  the 
two  buildings  had  apparently  been  erected  at  the  same  time, 
and  were  estimated  to  be  upwards  of  one  hundred  years  old. 
Both  had  been  occupied  as  dwelling-houses  until  about  twen- 
ty-seven years  before  the  accident,  but  the  plaintiff's  prede- 
cessor had  then  converted  his  house  into  a  coach  factory,  re- 
moving the  internal  walls,  and  erecting  a  stack  of  brickwork, 
which  served  as  a  chimney  stack,  and  also  supported  the  gird- 
ers which  he  put  up  to  sustain  the  floors.  The  defendant,  in 
taking  down  the  adjoining  house,  and  in  digging  cellars  which 
had  not  previously  existed,  left  a  support  for  the  chimney 
stack  which  proved  insufficient,  and  it  fell,  drawing  after  it  the 
entire  factory.  On  the  question  whether  the  defendant  was 
liable  the  judges  disagreed.  Lush,  J.,  thought  that  plaintiff 
had  acquired  a  prescriptive  right  to  the  support  of  his  factory, 
while  Cockburn,  C.  J.,  and  Mellor,  J.,  held  otherwise.  The 
principal  judgment  was  prepared  by  Cockburn,  C.  J.,  who 
traced  the  growth  of  this  doctrine,  as  to  presumption  and  the 
extent  to  which  it  has  been  carried,  and  reviewed  fully  the 
authorities  on  the  law  of  prescriptive  easements. 

The  learned  chief  justice  first  showed  at  length  that  the 
whole  theory  of  prescription  depends  upon  the  presumption 
of  a  grant  having  been  made,  and  that  if,  therefore,  it  can  be 
shown  that  no  grant  could  have  been  legally  made,  or  that 
it  was  an  improbable  thing  that  a  grant  ever  was  made,  the 
presumption  cannot  arise  and  the  title  by  prescription  fails, 
or,  in  other  words,  that  the  twenty  years'  enjoyment  of  the 
support  was  not  conclusive,  but  only  evidence  of  a  presump- 
tion. But  the  most  significant  portion  of  the  judgment  is  the 
following : 

sumption  from  arising."     Similar  language  was  used  forty  years  ago  in 
Richart  v.  Scott,  7  Watts,  460. 
1  3  Q.  B.  D.  85  (1877). 


234  ACQUISITION   OF  EASEMENTS. 

"  I  am  very  far  from  saying  that,  when  houses  or  buildings 
have  stood  for  many  j'^ears,  especially  when  they  appear  to  be 
of  equal  age,  the  presumption  of  a  reciprocal  easement  of  lat- 
eral support  ought  not  to  be  made.  It  may  reasonably  be 
inferred  that  they  were  built  under  any  of  the  circumstances 
from  which,  at  the  present  time,  a  grant  would  properly  be 
implied.  Thus  they  may  have  been  built  by  one  owner,  or 
under  a  common  building  lease,  or  if  built  by  different  owners, 
whei'e  some  arrangement  for  mutual  support  was  come  to. 
Thus,  had  the  plaintiff's  premises  remained  in  their  original 
condition,  I  should  have  been  prepared  to  make  the  necessary 
presumption  to  uphold  the  right.  Where  land  has  been  sold 
by  the  owner  for  the  express  purpose  of  being  built  upon,  or 
where,  from  other  circumstances,  a  grant  can  reasonably  be 
implied,  I  agree  that  every  presumption  should  be  made,  and 
every  inference  should  be  drawn  in  favor  of  such  an  easement, 
short  of  presuming  a  grant  when  it  is  undoubted  that  none 
has  ever  existed.  But  in  the  absence  of  any  such  circum- 
stances, there  is  no  form  of  easement  in  which,  as  it  seems  to 
me,  the  doctrine  of  presumption  should  be  more  cautiously 
and  sparingly  applied  than  the  easement  of  lateral  support. 
For  this  easement  is  obviously  one  of  a  very  anomalous  char- 
acter. In  every  other  form  of  easement  the  party  whose 
right  as  owner  is  prejudicially  affected  by  the  user,  has  the 
means  of  resisting  it  if  illegally  exercised.  In  the  case  of  the 
so-called  '  affirmative '  easements,  he  can  bring  his  action  or 
oppose  phj'sical  obstruction  to  the  exercise  of  the  asserted 
right.  Even  in  the  case  of  another  negative  easement,  and 
which  is  said  to  approach  the  more  nearly  to  this  —  that  of 
light  —  the  supposed  analogy  entirely  fails.  For  although  no 
action  can  be  brought  against  a  neighboring  owner  for  open- 
ing windows  overlooking  the  land  of  another,  there  is  still  the 
remedy,  however  rude,  of  physical  obstruction  by  building 
opposite  to  them.  But  against  the  acquisition  of  such  an  ease- 
ment as  the  one  here  in  question,  the  adjoining  owner  has  no 
remedy  or  means  of  resistance,  —  unless,  indeed,  he  should  ex- 
cavate in  his  own  immediately  adjacent  soil  while  the  neigh- 
boring house  is  being  built,  or  before  the  easement  has  been 


SUPPORT.  236 

fully  acquired,  for  the  purpose  of  causing  the  house  to  fall. 
But  what  would  be  thought  of  a  man  who  thus  asserted  his 
right  ?  Or,  possibly,  as  in  the  present  instance,  he  may  have 
built  to  the  extremity  of  his  own  land,  and  may  require  the 
support  of  his  soil  to  uphold  his  own  house ;  is  he  to  endanger 
and  perhaps  destroy  his  own  house  by  excavating  under  it  for 
the  purpose  of  preventing  his  neighbor  from  acquiring  the 
right  of  support  ?  The  question,  as  it  seems  to  me,  answers 
itself.  To  say  that  by  reason  of  an  adjoining  house  being 
built  on  the  extremity  of  the  owner's  soil  a  right  of  support 
is  to  be  acquired  in  the  absence  of  any  grant  or  assent,  ex- 
press or  implied,  against  the  adjacent  owner,  who  may  be 
altogether  ignorant  whether  the  house  or  other  building  is 
supported  by  his  soil  or  not,  and  who,  whether  he  knows  it  or 
not,  has  no  means  of  resisting  the  acquisition  of  an  easement 
against  himself,  either  by  dissent  or  resistance  of  any  kind, 
appears  to  me  to  be  repugnant  to  reason  and  common  sense, 
as  well  as  to  the  first  principles  of  justice  and  right." 

The  decision,  therefore,  was  against  any  pi'escriptive  right ; 
but  considering  the  elaborate  dissenting  opinion  of  Lush,  J., 
and  the  hesitating  assent  of  Mellor,  J.,  in  the  opinion  of  the 
chief  justice,  and  considering  that  the  doctrine  has  yet  the 
express  approbation  of  only  two  of  the  fifteen  common  law 
judges  of  England,  it  can  hardly  be  said  to  be  the  established 
law  of  England.  And  on  appeal  ^  the  decision  below  was 
not  fully  approved,  and  these  conclusions  were  reached.  The 
right  to  the  support  of  a  building  by  the  adjacent  soil  of  an 
adjacent  owner  is  not  a  natural  right  of  property  ;  it  is  an 
easement  wdiich  may  be  acquired  by  prescription  from  the 
time  of  legal  memory,  or  by  grant  express  or  implied  ;  but  it 
is  not  an  easement  within  the  Prescription  Act  (2  &  3  Wm. 
IV.  c.  71).  It  may  also  be  acquired  by  the  circumstance  that 
the  building  has  stood  for  twenty  years,  if  during  that  period 
the  owner  of  the  adjacent  soil  knew  or  might  have  known 
that  the  building  was  thereby  supported,  and  if  he  was  capa- 
ble of  making  a  grant ;  and  (by  Cotton  and  Thesiger,  L.  JJ., 

^  4  Q.  B.  D.  162.  But  the  general  principles  stated  by  Cockburn,  C.  J., 
in  the  court  below,  were  not  impugned. 


236  ACQUISITION   OF   EASEMENTS. 

as  to  this  Brett,  L.  J.,  dissenting)  after  twenty  years'  enjoy- 
ment in  point  of  fact  of  the  support  to  the  building  the  claim 
to  it  as  a  matter  of  right  will  not  be  defeated  by  proof  that 
no  grant  of  the  easement  was  ever  made.  But  upon  the  facts 
of  this  particular  case,  it  was  held  by  Cotton  and  Thesiger, 
L.  JJ.,  overruling  the  judgment  of  the  majority  of  the  Queen's 
Bench  Division  (Brett,  L.  J.,  dissenting,  in  an  able  opinion), 
that  the  defendants  were  not  entitled  to  judgment,  for  the  en- 
joyment during  more  than  twenty  years  of  the  support  in 
point  of  fact  raised  a  presumption  that  the  occupiers  of  the 
plaintiff's  factory  were  entitled  thereto  as  matter  of  right,  and 
the  circumstance  that  no  grant  of  the  easement  of  support  had 
been  made  was  not  material ;  but  that  the  defendants  were 
entitled  to  a  new  trial  on  the  ground  that  they  might  rebut 
the  presumption  by  evidence,  either  that  the  owner  of  the 
house  pulled  down  by  the  defendants  did  not  know  the  nature 
of  the  alterations  made  when  the  building  occupied  by  the 
plaintiffs  was  converted  into  a  factory,  or  that  he  was  incapa- 
ble of  making  a  grant.  By  Brett,  L.  J.,  that  as  it  had  been 
admitted  that  no  grant  by  deed  of  the  right  of  support  for 
the  factory  had  ever  been  made,  no  easement  had  been  ac- 
quired from  the  enjoyment  in  fact  for  twenty  years  of  the 
support  of  the  adjacent  soil,  and  that  the  defendants  were  en- 
titled to  judgment. 

By  whatever  means  a  prescriptive  right  to  support  for 
No  pre-  buildings  from  land  arises,  whether  by  presumed 
right  to^  grant  or  by  an  absolute  rule  of  law,  there  is  no 
support  doubt  that  no  right  to  support  for  one  building  from 
ings.  another  can  be  acquired  by  prescription,  either  at 

common  law  or  under  the  Prescription  Act,  because  the  sup- 
port which  one  building  receives  from  another  must  be  en- 
joyed, if  at  all,  by  stealth  ;  and  enjoyment  by  stealth,  it  has 
been  explained,  is  insufficient  to  confer  a  right  by  prescrip- 
tion :  no  one  can  tell  till  a  house  is  pulled  down  whether  it 
has  afforded  support  to  an  adjoining  building  at  all,  and  if  it 
is  then  found  to  do  so,  no  one  knows  when  the  support  was 
first  afforded.     Solomon  v.  The  Vintners'  Company^  was  an 

»4  H.  &  N.  585;  28  L.  J.  Exch.  370.  See  Brown  v.  Windsor,  1 
Cromp.  &  J.  20. 


SUPPORT.  237 

action  for  removing  support  afforded  by  one  house  to  another, 
whereby  the  latter  fell ;  the  houses,  however,  were  not  adjoin- 
ing, but  were  separated  from  each  other  by  another  house, 
which  also  tumbled  down  when  the  support  was  removed. 
Two  judgments  were  given  in  the  case  —  one   by  Pollock, 
C.  B.,  and  the  other  by  Bramwell,  B.     In  speaking  of  the 
general  right  to  support  for  buildings  from  buildings.  Pollock, 
C.  B.,  assigned  a  different  reason  from  that  given  by  the  other 
learned  judge,  why,  in  his  opinion,  no  right  to  support  could 
be  acquired  by  prescription,  but  both  appeared  to  think  such  a 
right  could  not  be  so  acquired.     The  Lord  Chief  Baron  said  : 
"  It  is  extremely  difficult  to  see  how  the  circumstance  of  the 
houses  having  stood  for  twenty  years  makes  any  difference  or 
creates  a  right  where  houses  are  supposed  to  have  been  built 
by  different  adjoining  landowners,  each  with  its  separate  and 
independent  walls,  but  that  upwards  of  twenty  years  ago  one 
of  them  got  out  of  the  perpendicular  and  leaned  upon  and 
was  supported  in  part  by  the  other,  so  that  if  the  latter  were 
removed  the  other  would  fall.     The  question  is,  whether  any 
right  of  support  is  thereby  obtained.     It  cannot  be  a  right 
by  prescription,  which  supposes  a  state  of  things  existing  be- 
fore the  time  of  legal  memory.     Nor  does  it  seem  to  us  to  be 
a  right  under  the  Prescription  Act,  2   &  3   Wm.  IV.  c.  71, 
which  has  been  hitherto  confined  to  rights  in  their  nature  of 
a  perpetual  and  permanent  character,  and  the  ownership  of 
which  is  a  fee  simple."     Baron  Bramwell  put  the  case  on 
another  ground,  namely,  that  the  right  could  not  be  acquired 
by  prescription,  because  the  enjoyment  was  not  of  a  character 
which  would  confer  such  a  right.     He  said  that  supposing  the 
right  were  capable  of  being  acquired  by  prescription,  or  under 
the  Prescription  Act,  or  by  some  supposed  lost  grant,  it  could 
in  any  of  those  cases  only  exist  if  the  benefit  which  is  claimed 
was  one  that  was  enjoyed  as  of  right.     "  Now,  a  thing  can- 
not be  enjoyed  as  of  right  unless  it  is  openly  and  visibly  en- 
joyed.   An  enjoyment  must  neither  be  vi,  jpreeario,  nor  clam; 
it  must  be  open.     Now,  when  you  see  one  house  leaning  to- 
wards another,  you  may  make  a  tolerably  shrewd  guess  that  it 
is  partly  supported  by  the  other  ;  but  it  is  but  a  guess ;  you 


238  ACQUISITION   OF  EASEMENTS. 

cannot  tell.  It  may  be  that  they  have  both  slipped,  and  both 
stand,  as  I  think  the  expression  is,  npon  'the  square '  — self- 
supporting  —  and  it  may  turn  out,  and  it  may  be  the  fact, 
that  the  house  which  leans  towards  the  other  affords  as  much 
support  to  that  other,  by  the  two  being  joined  or  sticking  to- 
gether in  some  way  or  another,  as  the  other  affords  to  it. 
One  cannot  tell  upon  the  face  of  it  that  it  is  being  sup- 
ported," .  .  .  .  "  therefore,  to  my  mind,  supposing  the  plain- 
tiff for  more  than  twenty  years  had  an  enjoyment,  which  he 
says  now  ought  to  continue,  it  was  an  enjoyment  clam  —  not 
openly,  and  consequently  not  as  a  right." 

It  may  be  taken  from  these  judgments  that  no  right  to  sup- 
port for  one  building  from  another  can  be  acquired  by  pre- 
scription, either  for  the  reason  assigned  by  the  Lord  Chief 
Baron  Pollock,  or  that  in  the  judgment  of  Mr.  Baron  Bram- 
well ;  but  when  the  reasons  there  assigned  are  considered,  it 
seems  very  strange  that  they  should  not  apply  with  equal 
force  to  cases  of  support  for  buildings  from  adjacent  land,  so 
as  to  prohibit  the  acquisition  of  rights  to  lateral  support  for 
buildings  by  prescription  altogether,  for  it  may  in  such  case 
equally  well  be  said  that  the  right  could  not  be  acquired  at 
common  law  which  supposes  a  state  of  things  which  has  ex- 
isted from  before  the  time  of  legal  memory,  not  under  the 
statute,  because  the  act  applies  only  to  rights  of  a  perpetual 
and  permanent  nature ;  there  can  be  but  little  doubt,  also, 
that  the  enjoyment  of  lateral  support  from  land  is  as  stealthy 
in  its  character  as  support  from  an  adjoining  building,  for 
who  can  tell  that  any  support  is  afforded  by  adjacent  ground, 
and  if  it  is,  whether  that  support  was  first  afforded  when  the 
house  was  built,  or  subsequently  when  the  house  increased  in 
age,  and  the  subjacent  soil  became  compressed  by  its  weight. 
It  can  be  but  a  matter  of  speculation.  Independently  of  these 
reasons,  the  nature  of  the  easement  is  such  that  the  servient 
owner  can  have  no  power  of  resisting  the  enjoyment,  and 
how,  then,  can  a  grant  be  presumed  ?  For  all  these  reasons  it 
would  surely  be  far  more  reasonable  if  some  absolute  rule  of 
law  were  established,  and  that  the  theory  of  presuming  a 
grant  were  entirely  abandoned. 


WATER.  239 


WATER. 

And  here  again  the  reader  is  reminded  that  this  section  is 
intended  to  treat  of  "  Easements  in  Water,"  and  not  of 
"  Watercourses  "  generally.  Every  riparian  proprietor  has  a 
"  natural  right "  that  a  natural  stream  of  water  flowing 
through  his  premises  shall  enter  where  it  naturally  did,  and 
in  its  natural  quantity  and  purity,  and  that  it  leave  his  land 
free  and  unobstructed  by  the  proprietor  below.  But  the  pro- 
prietor above  may  claim  a  right  to  interfere  with  this  natural 
condition  of  the  stream,  and  either  to  change  its  channel,  or  its 
quantity,  or  its  purity  ;  and  if  he  does  this  under  an  assumed 
natural  right,  the  limits  and  extent  of  such  a  right  properly 
belonsfs  to  a  treatise  on  watercourses.  But  if  he  asserts  that 
such  right  has  been  acquired  by  grant  or  prescription,  then  he 
claims  an  easement  in  the  water.  So  every  riparian  propri- 
etor, or  mill-owner,  has  a  natural  right,  irrespective  of  any 
grant  or  prescription,  to  use  the  stream  in  a  reasonable  man- 
ner, for  the  purposes  of  his  lawful  business,  although  the  water 
is  thereby  somewhat  contaminated,  as  by  the  deposit  of  saw- 
dust, tan-bark,  &c ;  ^  and  it  is  only  when  he  attempts  to  do 
so  in  some  unreasonable  manner,  either  as  to  quantity  or 
time,  that  he  need  rely  upon  any  acquired  right  or  easement, 
by  grant  or  prescription,  and  then  he  is  subject  to  the  ordi- 
nary rules  of  acquiring  easements.^  So  every  riparian  pro- 
prietor has  a  right  to  have  the  water  flow  from  his  land  with- 
out obstruction  ;  and  he  may  enter  on  the  premises  below  and 
remove  any  unlawful  obstruction  caused  by  the  owner  below  ; 
but  this  is  a  natural,  and  not  an  acquired  right,  although  it  is 
sometimes  called  a  "  natural  easement,"  ^  or  secondary  ease- 

1  See  Snow  v.  Parsons,  28  Vt.  459;  Jacobs  v.  Allard,  42  Vt.  303;  Vea- 
zie  V.  Dwinel,  50  Me.  490;  O'Reiley  v.  McChesney,  49  N.  Y.  672;  Pren- 
tice V.  Geiger,  74  N.  Y.  341. 

2  See  Jones  v.  Crow,  32  Penn.  St.  398;  Hayes  r.  Waldron,  44  N.  H. 
585 ;  Murgatroyd  v.  Robinson,  7  El.  &  Bl.  391 ;  Moore  v.  Webb,  1  C.  B. 
N.  S.  673  ;  Housee  v.  Hammond,  39  Barb.  89;  Holsman  v.  Boiling  Spring 
Co.  1  Mc Carter,  335. 

8  See  Prescott  v.  Williams,  5  Met.  435;  Prescott  v.  White,  21  Pick.  342; 
Hodges  V.  Raymond,  9  Mass.  316;  Heath  v.  Williams,  25  Me.  209  ;  Gary  v. 
Daniels,  5  Met.  236;  Ashley  v.  Ashley,  6  Cush.  70. 


240  ACQUISITION  OF   EASEMENTS. 

ment.  If,  however,  the  proprietor  claims  a  right  to  pen  back 
the  water  on  the  land  above  him,  this,  if  it  exists  at  all,  is  an 
acquired  right  or  easement,  and  all  such  cases  properly  come 
under  consideration  in  a  treatise  on  Easements. 

So,  also,  the  right  of  the  public  to  pass  and  repass  up  and 
down  navigable  streams  or  large  rivers,  —  great  natural  high- 
ways, —  being  also  a  natural  right,  is  not  discussed  here. 

The  distinction  between  natural  or  riparian  rights  and 
easements  in  watercourses  has  been  explained  in  the 

Acquisition  .  i  •  i 

of  water  previous  chapter,  and  it  was  at  the  same  time  shown 
'^  ^"  that  easements  in  water  are  of  three  kinds,  namely, 
those  which  relate  to  the  flow  of  water,  those  which  relate  to 
purity  of  water,  and  those  which  relate  to  the  taking  of  water 
for  use.  These  easements  may  be  acquired  by  grant,  express 
or  implied,  or  by  prescription. 

Questions  as  to  grants  of  water  rights,  or  easements  in 
water,  generally  arise  when  the  property  in  lands 
owned  by  one  and  the  same  person  has  been  severed 
by  sale,  and  when  water  in  one  part  has  been  used  during  the 
unity  of  ownership  for  the  benefit  of  the  other  part,  after  the 
manner  of  an  easement.  In  such  cases,  if  the  owner  sells  the 
quasi-dominsint  part  of  his  lands,  with  the  "  appurtenances," 
or  with  the  easements  therewith  "  used  and  enjoyed,"  ques- 
tions frequently  arise  whether  the  purchaser  has  become  enti- 
tled by  virtue  of  the  grant  to  use  the  water  in  the  vendor's 
land  as  the  latter  used  it  when  he  held  both  properties. 
The  rules  of  law  on  this  topic  have  already  been  considered 
when  the  subject  of  acquisition  of  easements  generally  by 
grant  was  discussed  in  the  first  section  of  this  chapter. 

Rights  to  watercourses  and  the  use  of  water  are  two  of 
By  the  classes  of  easements  expressly  mentioned  in  the 

scription.  second  scctiou  of  the  Prescription  Act  as  being  ca- 
pable of  acquisition  under  that  statute  ;  but  the  effect  of  that 
act,  as  was  previously  shown,  is  not  to  preclude  easements  of 
this  kind  from  being  acquired  by  prescription  at  common 
law.'*  Those  rights  may  therefore  be  claimed  and  acquired 
by  prescription  either  at  common  law  or  under  the  act.  The 
*  Holford  V.  Hankinson,  5  Q.  B.  584. 


WATER.  241 

power  of  acquiring  easements  in  water  by  prescription,  how- 
ever, extends  only  to  streams  which  flow  in  defined    streams 
courses,  and  to  pools  of  a  permanent  character :  no    mustb'e de- 
rights  in  the  nature  of  easements  can  be  acquired   ^"^'^  ^^^ 
in  mere  surface  water  which  oozes  through  the  soil   nent. 
and  trickles  away  without  any  defined  course,  and  the  owner 
of  land  may  get  rid  of  the  nuisance  from  such  water  in  any 
way  that  is  most  convenient  to  himself.* 

IN   AMERICA, 

it  is  sometimes  held  that  every  landowner  has  a  natural  right 
to  detain,  divert,  or  obstruct  the  passage  of  mere  surface  water 
over  his  land,  at  his  own  pleasure,  and  without  any  liability 
to  his  neighbor.!  And  where  this  is  so  held  he  has  no  need 
of  acquiring  such  right  as  an  easement. 

And  by  "  surface  water  "  is  meant  not  only  that  which 
comes  from  falling  rains,  or  melting  snows,  but  also  that 
which  oozes  from  the  ground  and  finds  its  way  over  the  sur- 
face, through  the  grass  or  among  the  tussocks,  but  not  gath- 
ered into  a  defined  channel  or  stream,  with  a  bed  and  banks. 
And  the  passage  of  such  water  from  one's  own  land  over  the 
surface  of  a  neighbor's  land  for  more  than  twenty  years  can 
give  no  prescriptive  right  to  its  continuance  so  to  flow.^ 

On  the  other  hand,  there  is  no  natural  right  to  collect  even 
surface  water  into  an  artificial  charmely  and  thus  turn  it  upon 

»  Rawstron  v.  Taylor,  11  Exch.  369;  25  L.  J.  Exch.  33  ;  Broadbent  v. 
Ramsbotham,  11  Exch.  603  ;   25  L.  J.  Exch.  115. 

1  Morrill  v.  Hurley,  120  Mass.  99;  Gannon  v.  Hargadon,  10  Allen,  110 
Franklin  v.  Fisk,  13  Allen,   211  ;    Taylor  v.  Fickas  64  Ind.  168,  a  late 
and  valuable  case  on  the  subject;  Bentz  v.  Armstrong,  8  Watts  &  Serg.  40 
Bates  I'.  Smith,  100  Mass.  182  ;  Goodale  v.  Tuttle,  29  N.  Y.  467;  Conhoc 
ton  Railroad  Co.  v.  Buffalo,  &c.  Railroad  Co.  5  T.  &  C.  651;  3  Hun,  523 
Frazier  v.  Brown,  12  Ohio  St.  300;  Wagner  v.  Long  Island  Railroad  Co. 
5  T.  &  C.  163;  2  Hun,  633  ;  Svvett  v.  Cutts,  50  N.  H.  439;  Waffle  v.  New 
York  Central  Railroad  Co.  58  Barb.  413;  Bowlsby  v.  Speer,  31  N.  J.  Law, 
352;  Buff'ura  v.  Harris,  5  R.  L  243;  Hoyt  v.  Hudson,  27  Wis.  656;  M'Gil- 
livray  v.  Millin,  27  Up.  Can.  Q.  B.  62;  Crewson  v.  Grand  Trunk  Railway 
Co.  lb.  68;  Nichol  v.  Canada  Southern  Railway  Co.  40  lb.  693;  Darby  v. 
Corporation  of  Crowland,  38  lb.  338;  Lynch  v.  The  Mayor,  76  N.  Y.  60. 

^  Parks  V.  Newburyport,  10  Gray,  28. 
16 


242  ACQUISITION   OF   EASEMENTS. 

or  over  a  neighbor's  land ;  ^  but  such  right  might  be  acquired 
as  an  easement.  But  as  many  states  deny  the  existence  of 
any  natural  right  so  to  dispose  of  even  mere  surface  water,^ 
the  right  could  never  exist  in  such  states,  except  as  an  ac- 
quired right  or  easement. 

An  intermediate  view  sometimes  obtains,  viz.,  not  that 
every  landowner  always  has  an  absolute  and  unqualified  right 
to  obstruct  surface  water  and  set  it  back  upon  the  land  of  his 
neighbors  ;  nor,  on  the  other  hand,  that  he  is  always  and  under 
all  circumstances  liable  if  he  does  so ;  but  that  his  liability  in 
such  cases  depends  upon  the  question  whether  such  obstruc- 
tion and  penning  back  was  reasonable  under  the  circumstances 
of  each  particular  case,  which  would  ordinarily  be  a  question 
for  the  jury,  under  the  instructions  of  the  court.^ 

When  streams  of  water  have  assumed  a  defined  and  per- 
Prescrip-  manent  course,  natural  rights  are  given  by  law  to 
in  aniHciai  owners  of  riparian  land  if  the  defined  streams  are 
streams.  formed  by  natural  means  ;  if,  on  the  other  hand, 
water  is  artificially  conducted  in  a  defined  course,  rights  to 
the  uninterrupted  flow  of  that  water,  and  to  use  the  water 
uninterruptedly  as  it  passes  land,  may  in  certain  cases  be  ac- 
quired by  prescription.-'     In  this  respect,  however,  the  person 

^  See  Dickinson  v.  Worcester,  7  Allen,  19;  Butler  v.  Peck,  16  Ohio  St. 
334;  Pettigrew  v.  Evansville,  25  Wis.  223;  Miller  v.  Laubacb,  47  Penn. 
St.  155;  Laney  v.  Jasper,  39  111.  46  ;  Livingston  v.  McDonald,  21  Iowa, 
160;  Nevins  v.  Peoria,  41  111.  502;  Byrnes  v.  City  of  Cohoes,  67  N.  Y.  204; 
Bastable  v.  City  of  Syracuse;  8  Hun,  587;  City  of  Aurora  v.  Gillett,  56 
111.  132;  City  of  Jacksonville  v.  Lambert,  62  111.  519. 

2  See  Ogburn  v.  Connor,  46  Cal.  346,  a  valuable  case  on  the  point; 
Gillham  v.  Madison  Ptailroad  Co.  49  111.  484;  Gormley  v.  Sanford,  52  111. 
158;  Laumier  v.  Francis,  23  Mo.  181;  Porter  v.  Durham,  74  N.  C.  767; 
Bowman  v.  New  Orleans,  27  La.  An.  501  ;  Beard  v.  Murphy,  37  Vt.  104; 
Lattimore  v.  Davis,  14  La.  161  ;  Hays  v.  Hays,  19  La.  351 ;  Kauffman  v. 
Grieseraer,  26  Penn.  St.  407;  Bellows  v.  Sackett,  15  Barb.  96;  Martin  v. 
Kiddle,  26  Penn.  St.  415;  Adams  v.  Walker,  34  Conn,  466. 

8  Sweet  V.  Cutts,  50  N.  H.  439,  a  very  well  considered  case. 

J  The  law  respecting  rights,  and  the  modes  of  acquiring  rights  to  the 
uninterrupted  flow  of  streams,  is  the  same,  whether  the  streams  are  above 
or  under  ground,  if  the  course  is  defined  and  known.  Chasemore  v. 
Richards,  7  H.  L.  C.  349;  29  L.  J.  Exch.  81;  Wood  v.  Waud,  3  Exch. 
748;  18  L.  J.  Exch.  305;  Dickenson  v.  Grand  Junction  Canal  Co.  7  Exch. 
282;  21  L.  J.  Exch.  241. 


WATER.  243 

who  creates  an  artificial  stream  stands  in  a  different  posi- 
tion from  one  through  whose  land  the  water  flows  when  the 
stream  is  created  ;  for  easements  may,  in  some  cases,  be 
acquired  against  the  latter,  when  they  cannot  be  acquired 
against  the  former.  The  possibility  of  acquiring  rights  to  the 
uninterrupted  flow  of  the  water  of  artificial  streams  against 
their  originator  depends  upon  the  circumstance  whether  the 
sti'eams  are  of  a  temporary  or  of  a  permanent  character. 

Whether  the  character  of  a  stream  is  temporary  or  perma- 
nent is,  of  course,  a  question  of  fact  in  each  case ;  Temporary 
there  are  many  instances  in  which  this  case  may  nent^^'^'"'^" 
present  some  diflSculty,  but  there  are  others  in  which  streams. 
no  doubt  can  arise.  If,  for  instance,  a  stream  originates  from 
the  pumping  of  water  from  a  mine,  there  can  be  no  doubt 
that  the  cliaracter  of  that  stream  is  temporary,  although  it 
may  happen  that  the  pumping  will  continue  for  a  hundred 
years  ;  and,  on  the  other  hand,  a  watercourse  dug  to  supply  a 
mill  with  water  taken  from  a  river  will  probably  be  held  to 
be  of  a  permanent  character,  although  it  is  possible  that  the 
mill  will  be  removed  and  the  watercourse  filled  up  in  a  short 
time.  The  character  of  a  stream  therefore,  whether  perma- 
nent or  temporary,  cannot  be  determined  solely  by  the  length 
of  time  during  which  the  supply  of  water  is  likely  to  con- 
tinue, but  it  is  rather  to  be  decided  by  the  apparent  intention 
of  the  person  who  created  the  stream,  and  the  mode  by  which 
the  supply  of  water  is  procured.* 

It  is  not  absolutely  necessary  that  the  flow  of  water  should 
be  constant  all  the  year  round,  in  order  to  constitute  it  a 
watercourse.  If,  when  it  does  flow,  it  naturally  forms  a  bed, 
banks,  and  well  defined  channel,  it  is  then  a  watercourse,  al- 
though at  some  seasons  of  the  year  it  may  be  wholly  dry ;  but 
it  must  have  these  elements ;  viz.,  a  well  defined  and  substan- 
tial existence.^ 

^  Beeston  v.  Weate,  5  E.  &  B.  986;  25  L.  J.  Q.  B.  115. 

1  Ashley  y.  Wolcott,  11  Cush.  195;  Shields  i;.  Arndt,  3  Green  Ch.  R. 
246;  Wagner  v.  Long  Island  Railroad  Co.  5  T.  &  C.  163  ;  2  Hun,  633  ; 
Luther  v.  Winnisimmet  Co.  9  Cush.  171;  Eulrich  v.  Richter,  41  Wis.  318; 
Barnes  v.  Sabron,  10  Nev.  217. 


244  ACQUISITION    OF   EASEMENTS. 

If  an  artificial  stream  of  water  is  of  a  temporary  character, 
Prescrip-  no  right  that  the  supply  of  water  shall  be  uniiiter- 
i*nTem")o-'  rupted  caii  be  acquired  by  prescription  against  the 
raryarti-  originator  of  the  stream,  though  such  a  right  may 
streams.  be  SO  acquired  against  persons  through  whose  land 
the  water  has  been  accustomed  to  flow.  The  celebrated  case 
Arkwright  of  Arkwright  V.  Gell  ^  is  the  leading  authority  on  the 
V.  Gell.  jg^^y  relating  to  water  rights  in  artificial  streams,  and 
the  facts  of  that  case  were  shortly  these.  The  plaintiffs  were 
owners  of  some  cotton  mills,  and  the  action  was  brought  in 
consequence  of  certain  alleged  wrongful  diversion  of  the  water 
of  a  stream  which  was  accustomed  to  supply  the  mills,  to  the 
uninterrupted  use  of  which  the  plaintiffs  claimed  to  be  enti- 
tled. The  stream  in  question  was  a  mineral  sough,  which  had 
existed  for  many  years,  though  the  precise  origin  of  its  exist- 
ence, and  the  date  when  it  was  made,  were  unknown;  but  a 
part  towards  the  mouth  had  existed  upwards  of  one  hundred 
and  thirty  years,  and  was  made,  and  had  always  to  the  time 
of  the  action  been  used,  for  the  purpose  of  draining  lead 
mines.  The  plaintiffs'  mills  were  erected  in  the  year  1772, 
nearly  sixty  years  before  the  action,  and  the  water  of  the 
sough  had  ever  since  been  used  to  turn  the  wheels  and  ma- 
chinery of  the  mills,  and  it  was  under  these  circumstances 
that  the  plaintiffs  claimed  to  be  entitled  by  prescription  to 
the  continued  use  of  the  water.  The  law  was  so  fully  consid- 
ered in  the  judgment,  and  the  case  has  always  been  received 
as  an  authority  of  such  weight,  that  it  may  not  be  out  of 
place  to  cite  the  material  part  of  the  judgment  at  length. 
After  reciting  the  facts,  Parke,  B.,  who  delivered  the  judgment 
of  the  court,  said  :  "  The  stream  upon  which  the  mills  were 
constructed  was  not  a  natural  watercourse,  to  the  advantage 
of  which  flowing  in  its  natural  course  the  possessor  of  the  land 
adjoining  would  be  entitled  according  to  the  doctrine  laid 
down  in  Mason  v.  Hill,  and  in  other  cases.  This  was  an  arti- 
ficial watercourse,  and  the  sole  object  for  which  it  was  made 

'  5  M.  &  W.  203  ;  8  L.  J.  N.  S.  Exch.  201 ;  Gaved  v.  Marty n,  19  C.  B. 
N.  S.  732;  34  L.  J.  C.  P.  353;  Greatrex  v.  Hayward,  8  Exch.  291;  22 
L.  J.  Exch.  137.     See  Curtiss  v.  Ayrault,  47  N.  Y.  82. 


WATER.  '  245 

was  to  get  rid  of  a  nuisance  to  the  mines,  and  to  enable  their 
proprietors  to  get  the  ores  which  Lay  within  the  mineral  field 
drained  by  it ;  and  the  flow  of  water  through  that  channel 
was,  from  the  very  nature  of  the  case,  of  a  temporary  charac- 
ter, having  its  continuance  only  whilst  the  convenience  of  the 
mine-owners  required  it,  and  in  the  ordinary  course  it  would 
most  probably  cease  when  the  mineral  ore  above  its  level 
should  have  been  exhausted.  That  Sir  Richaixl  Arkwright 
contemplated  the  discontinuance  of  this  watercourse  (if  the 
question  of  his  knowledge  in  this  state  of  things  can  be  mate- 
rial), there  is  evidence  in  the  lease  made  in  1771,  which  con- 
tains a  provision  for  a  supply  from  the  river,  in  the  event  of 
the  stream  being  lessened  or  taken  away,  by  the  construction 
of  another  sough  ;  and  also  that  such  an  event  was  not  im- 
probable appears  from  the  clause  in  the  second  Cromford 
Canal  Act,  30  Geo.  III.  c.  56,  s.  4.  What,  then,  is  the  species 
of  right  or  interest  which  the  proprietor  of  the  surface  where 
the  stream  issued  forth,  or  his  grantees,  would  have  in  such  a 
watercourse  at  common  law,  and  independently  of  the  effect 
of  user  under  the  recent  statute,  2  &  3  Wm.  IV.  c.  71  ?  He 
would  only  have  a  right  to  use  it  for  any  purpose  to  which  it 
was  applicable  so  long  as  it  continued  there.  A  user  for 
twenty  years,  or  a  longer  time,  would  afford  no  presumption 
of  a  grant  of  the  right  to  the  water  in  perpetuity ;  for  such  a 
grant  would  in  truth  be  neither  more  nor  less  than  an  obliga- 
tion on  the  mine-owner  not  to  work  his  mines  by  the  ordinary 
mode  of  getting  minerals  below  the  level  drained  by  that 
sough,  and  to  keep  these  mines  flooded  up  to  that  level  in 
order  to  make  the  flow  of  water  constant  for  the  benefit  of 
those  who  had  used  it  for  some  profitable  purpose.  How  can 
it  be  supposed  that  the  mine-owners  could  have  meant  to  bur- 
den themselves  with  such  a  servitude  so  destructive  to  their 
interests ;  and  what  is  there  to  raise  an  inference  of  such  an 
intention  ?  The  mine-owner  could  not  bring  any  action 
against  the  person  using  the  stream  of  water,  so  that  the 
omission  to  bring  any  action  could  afford  no  argument  in 
favor  of  the  presumption  of  a  grant ;  nor  could  he  prevent  the 
enjoyment  of  that  stream  of  water  by  any  act  of  his,  except 


24G  ACQUISITION   OF   EASEMENTS. 

by  at  once  making  a  sough  at  a  lower  level,  and  thus  taking 
away  the  water  entirely,  a  course  so  expensive  and  inconven- 
ient that  it  would  be  very  unreasonable  and  a  very  improper 
extension  of  the  principle  apj)lied  to  the  case  of  lights,  to  infer 
from  the  abstinence  from  such  an  act  an  intention  to  grant 
the  use  of  the  water  in  perpetuity  as  a  matter  of  right.  Sev- 
eral instances  were  put,  in  the  course  of  the  argument,  of 
cases  analogous  to  the  present,  in  which  it  could  not  be  con- 
tended for  a  moment  that  any  right  was  acquired.  A  steam- 
engine  is  used  by  the  owner  of  a  mine  to  drain  it,  and  the 
water  pumped  up  flows  in  a  channel  to  the  estate  of  the  ad- 
joining landowner,  and  is  there  used  for  agricultural  purposes 
for  twenty  years.  Is  it  possible,  from  the  fact  of  such  a  user, 
to  presume  a  grant  by  the  owner  of  the  steam-engine  of  the 
right  to  the  water  in  perpetuity,  so  as  to  burden  himself  and 
the  assigns  of  his  mine  with  the  obligation  to  keep  a  steam- 
engine  forever  for  the  benefit  of  the  landowner  ?  Or  if  the 
water  from  the  spout  of  the  eaves  of  a  row  of  houses  was 
to  flow  into  an  adjoining  yard,  and  be  there  used  twenty 
years  by  its  occupiers  for  dohiestic  purposes,  could  it  be  suc- 
cessfully contended  tiiat  tiie  owners  of  the  houses  had  con- 
tracted an  obligation  not  to  alter  their  construction  so  as  to 
impair  the  flow  of  water  ?  Clearly'not.  In  all,  the  nature  of 
the  case  distinctly  shows  that  no  right  is  acquired  as  against 
the  owner  of  the  property  from  which  the  course  of  water 
takes  its  origin  ;-  though  as  between  the  first  and  any  subse- 
quent appropriator  of  the  watercourse  itself  such  a  right  may 
be  acquired.  And  so  in  the  present  case  Sir  Richard  Ark- 
wright,  by  the  grant  from  the  owner  of  the  surface  for  eighty- 
four  years,  acquired  a  right  to  use  the  stream  as  against  him, 
and  if  there  had  been  no  grant  he  would  by  twenty  years' 
user  have  acquired  the  like  right  as  against  such  owner  ;  but 
the  user,  even  for  a  much  longer  period,  whilst  the  flow  of 
water  was  going  on  for  the  convenience  of  the  mines,  would 
afford  no  presumption  of  a  grant  at  common  law  as  against 
the  owners  of  the  mines." 

If  an  artificial  stream  of  water  is  permanent  in  its  charac- 
ter, a  right  to  the  uninterrupted  flow  of  the  water  may  be 


WATER.  247 

acquired  against  both  the  originator  of  the  stream  and  also 
against  any  person  over  whose  hind  the  water  flows.    Prescrip- 
From   the  judgment  in   Arkwright  v.   Gell,  above   jnpenna- 
quoted,  it  will  be  seen  that  the  reason  why  a  right  to   "i^j".^jj'|'"" 
the  uninterrupted  flow  of  the  water  of  an  artificial   streams. 
stream  cannot  be  acquired  by  prescription  against  the  origi- 
nator of  the  stream,  if  it  is  of  a  temporary  character,  is,  that 
the  temporary  nature  of  the  stream  precludes  a  presumption 
of  a  grant  of  a  permanent  right ;  but  the  case  is  manifestly 
different  if  the  stream  is  permanent,  although  artificial,  for 
there  can  be  no  reason  why  a  person  who  makes  a  permanent 
watercourse  may  not  make  a  grant  of  right  in  perpetuity  to 
use  the  water  to  any  person  through  whose  land  the  stream  is 
made  to  flow,  and,  indeed,  nothing  is  more  likely  than  that  an 
owner  of  land  would  stipulate,  when  such  a  watercourse  is 
made,  that  he  shall  have  the  benefit  and  use  of  the  water  as 
it  flows  through  his  land.     A  presumption  of  such  a  grant, 
therefore,  may  readily  be  made,  and  it  will  receive  the  sanc- 
tion of  the  law.     In  the  case  of  Wood  v.  Waud,™  the  judg- 
ment of  the  Court  of  Exchequer  in  Arkwright  v.  Gell  was 
considered  and  approved,  and  the  court  further  said,  that  the 
right  to  artificial  watercourses,  as  against  the  party  creating 
them,  must  depend  upon  their  character,  whether  they  are  of 
a  permanent  or  temporary  nature,  and  upon  the  circumstances 
under  which   they   were  created  —  that  the    enjoyment    for 
twenty  years  of  a  stream,  diverted  or  penned  up  by  perma- 
nent embankments,  clearly  stands    upon   a  different  footing 
from  the  enjoyment  of  a  flow  of   water    originating  in  the 
mode  of  occupation  or  cultivation  of  a  person's  property,  and 
presumably  of  a  temporary  character,  and  liable  to  variation. 
Underground  streams  are  of  two  kinds,  namely  :  those,  the 
course   of   which  is   defined  and  known,  and  those    Right  to 
which  merely  percolate  through  the  earth,  without    ^erground' 
having  any  defined  course,  and  in  unknown  chan-   streams. 
nels.      If  the  course  of  underground  streams  is  defined  and 
known,  they  differ  in  no  respect  from  surface  streams  as  to 
the  natural  rights  and  easements  to  which  landowners  may  be 
™  3  Exch.  748;  18  L.  J.  E.xch.  305. 


248  ACQUISITION   OF   EASEMENTS. 

entitled  in  them,"  but  if  water  merely  percolates  through  the 
soil  in  unknown  channels,  the  same  rules  of  law  do  not  apply, 
and  streams  so  formed  differ  altogether  from  defined  streams 
on  the  surface  of  \and.  And  this  distinction  between  under- 
ground streams,  and  water  merely  percolating  or  soaking 
through  the  soil  in  invisible  and  unknown  channels  is  also 
well  established  in  the  American  law.^  Rights  to  the  unin- 
terrupted fk)w  of  percolating  streams,  the  course  of  which  is 
undefined  and  unknown,  may  be  granted  by  one  landowner  to 
another,"  but  no  such  rights  can  be  acquired  by  prescription. 
That  there  is  no  natural  right  to  the  uninterrupted  flow  of 
such  streams  was  decided  in  the  case  of  Acton  v.  Blundell,^ 
but  the  Coip't  of  Exchequer  Chamber  in  that  case  expressly 
guarded  itself  from  saying  what  might  be  the  rule  of  law  if 
there  had  been  an  uninterrupted  enjoyment  of  such  streams 
for  twenty  years.  In  the  subsequent  case  of  Chasemore  v. 
Richai-ds,'  the  theory  that  a  right  to  the  uninterrupted  flow 
of  such  streams  can  be  acquired  by  prescription,  was  shown 
to  be  contrary  to  the  ordinai-y  principles  of  law,  for  White- 
man,  J.,  while  delivering  the  opinion  of  the  judges  to  the 
House  of  Lords,  said,  that  any  such  right  against  another  per- 
son, founded  upon  length  of  enjoyment,  is  supposed  to  have 
originated  in  some  grant,  but  what  grant  could  be  presumed 
in  the  case  of  percolating  waters  depending  upon  the  quantity 
of  rain  falling,  or  the  natural  moisture  of  the  soil,  and  in  the 
absence  of  knowing  to  what  extent,  if  at  all,  the  enjojnnent 
would  be  affected  by  any  water  percolating  from  one  piece  of 

«  Chasemore  v.  Richards,  7  H.  L.  C.  349;  29  L.  J.  Exch.  81 ;  Wood  v. 
Waud,  3  Exch.  748;  18  L.  J.  Exch.  305  ;  Dickinson  v.  Grand  Junction 
Canal  Co.  7  Exch.  282;  21  L.  J.  Exch.  241. 

^  See  Whetstone  v.  Bowser,  29  Penn.  St.  59;  Cole  Silver  Mining  Co.  v. 
Virginia  and  Gold  Hill  Water  Co.  1  Sawyer,  470;  Chatfield  v.  Wilson,  29 
Vt.  49 ;  Bassett  v.  Salisbury  Man.  Co.  43  N.  H.  569;  Goodale  v.  Tuttle,  29 
N.  Y.  466  ;  Frazier  v.  Brown,  12  Ohio  St.  304  ;  Haldeman  v.  Bruckhardt, 
45  Penn.  St.  521;  Trustees  of  Delhi,  &c.  v.  Youmans,  50  Barb.  316  ;  45 
N.  Y.  362;  and  cases  cited,  post,  p.  253,  note. 

"  Whitehead  v.  Parks,  2  H.  &  N.  870;  27  L.  J.  Exch.  169. 

i'  12  M.  &  W.  324  ;  13  L.  J.  Exch.  289. 

9  7  H.  L.  C.  349;  29  L.  J.  Exch.  81. 


WATER.  249 

land  to  another  ?  He  added  also,  that  the  presumption  of  a 
grant  only  arises  where  the  person  against  whom  it  is  to  be 
raised  might  have  prevented  the  exercise  of  the  subject  of  the 
presumed  grant  ;  but  how  could  a  man  prevent  or  stop  the 
percolation  of  water  ?  Lord  Wensleydale  also  stated  that  he 
did  not  think  that  the  principle  of  prescription  could  be  ap- 
plied to  the  case. 

A  right  to  divert  the  water  of  a  stream  from  its  usual 
course  is  an  easement  which  may  be  acquired  by  pi^ersion 
grant  or  prescription,  and  this  easement  may  be  ac-  o^  streams. 
quired  both  in  natural  and  in  artificial  streams.^  That  the 
water  of  natural  streams  shall  flow  on  uninterruptedly  and 
without  diversion  is  one  of  the  natural  rights  to  which  all 
owners  of  land  abutting  on  such  streams  are  entitled  ;  but  if 
another  person,  riparian  owner  or  otherwise,  has  uninterrupt- 
edly diverted  the  water,  whether  continuously  or  at  intervals 
—  as,  for  instance,  at  particular  times  of  the  year  —  for  twenty 
years,  an  adverse  easement  entitling  him  to  continue  such  di- 
version may  be  acquired  against  the  riparian  owners  by  pre- 
scription/ Similarly  a  right  may  be  acquired  to  divert  the 
water  of  artificial  streams  ;  but  it  would  seem  from  the  prin- 
ciple laid  down  in  the  case  of  Arkwright  v.  Gell,  above  cited, 
that  if  an  artificial  cut  in  which  water  flows  has  been  made 
merely  for  a  temporary  purpose,  no  prescriptive  right  to  di- 
vert the  water  can  be  acquired  against  the  maker  of  the  cut.* 

In  like  manner  a  right  may  be  acquired  to  obstruct  the 
water  of  a  stream  from  flowing;  in  its  usual  course.    Right  to 
and  to  pen  it  back  on  to  the  land  of  riparian  propri-   [h" water 
etors,  if  the  practice  of  obstructing  and  penning  it  «£  streams. 

^  That  one  may  acquire  a  right  by  prescription  to  divert  the  water  as  it 
flows  through  his  own  land,  and  use  it  for  his  own  purposes,  see  Norton 
V.  Voleiitine,  14  Vt.  239;  Bolivar  Man.  Co.  v.  Neponset  Man.  Co.  16  Pick. 
241;  Belknap  v.  Trimble,  3  Paige,  577  ;  Ingraham  v.  Hutchinson,  2  Conn. 
584;  Joues  v.  Crow,  32  Penn.  St.  398;  Brace  v.  Yale,  10  Al.len,  441;  97 
Mass.  18;  Buddington  v.  Bradley,  10  Conn.  213;  The  American  Co.  v. 
Bradford,  27  Cal.  360. 

'•  Wright  V.  Howard,  1  Sim.  &  St.  190 ;  1  L.  J.  Ch.  94;  Bealey  v.  Shaw, 
6  East,  209;  Mason  v.  Hill,  3  B.  &  Ad.  304;  1  L.  J.  N.  S.  K.  B.  107; 
Stockport  Waterworks  Co.  v.  Potter,  3  H.  &  C.  300. 

»  Beeston  v.  Weate,  5  E.  &  B.  986 ;  25  L.  J.  Q.  B.  115. 


250  ACQUISITION   OF  EASEMENTS. 

back  has  continued  for  twenty  j^ears  uninterruptedly,  and  if 
the  servient  owner  has  been  prejudiced  thereby/^  No  riglit, 
however,  to  obstruct  the  water  of  a  navigable  sti'eam  can  be 
acquired  against  the  public  ; "  although  if  the  public  did  not 
complain,  a  person  might  by  prescription  acquire  a  right,  as 
against  a  private  owner  alone,  to  flow  back  a  navigable  stream 
as  well  as  any  other.^ 

A  right  may  also  be  acquired  by  grant  or  by  prescription 
p     .  to  pour  water  over  the  land  of  another  person,  for  if 

water  over  a  stream  is  artificially  brought  to  the  surface  of  land, 
and  the  water  is  then  made  to  flow  over  the  land  of 
another  person  without  his  consent,  a  trespass  is  committed 
for  which  the  party  causing  the  water  to  flow  is  responsible  ; 
but  if  the  practice  of  so  pouring  the  water  over  the  land  has 
continued  uninterruptedly  for  twenty  years,  such  user  will 
cause  a  presumption  of  grant  to  arise,  and  a  right  to  continue 
the  pouring  of  water  may  be  acquired.  Although  a  right  to 
pour  water  over  land  may  thus  be  acquired  by  prescription, 

*  Cooper  V.  Barber,  3  Taunt.  99. 

^  That  a  riglit  to  overflow  the  lands  above  may  in  America  also  be  ac- 
quired by  prescription,  see  Sherwood  v.  Burr,  4  Day,  244;  Williams  v. 
Nelson,  23  Pick.  141 ;  Baldwin  v.  Calkins,  10  Wend.  169;  Stiles  v.  Hooker, 
7  Cow.  266;  Townsend  v.  McDonald,  14  Barb.  467;  Cowell  v.  Thayer, 
5  Met.  253;  Middleton  v.  Gregorie,  2  Rich.  631;  Hurlbut  v.  Leonard, 
Brayt.  201.  Of  course  a  right  to  flow  back  upon  another's  land  cannot 
be  acquired  by  prescription,  unless  the  enjoyment  was  adverse  to  the  land- 
owner. Colvin  V.  Burnet,  17  Wend.  5G4;  Hart  v.  Vose,  19  Wend.  365; 
Campbell  v.  Smiths,  3  Halst.  140;  Vliet  v.  Sherwood,  35  Wis.  229.  And 
if,  during  the  twenty  years  or  other  necessary  prescriptive  period,  the 
dam  is  raised  higher,  so  as  to  overflow  more  land,  the  prescriptive  right 
extends  only  to  the  lower  level,  and  an  action  lies  for  the  excess.  Stiles 
V.  Hooker,  7  Cow.  266;  Sherwood  v.  Burr,  4  Day,  244;  Baldwin  v.  Cal- 
kins, 10  Wend.  175;  McNab  v.  Adamson,  6  Up.  Can.  Q.  B.  100.  It  is 
not  fully  agreed  whether,  if  the  water  be  raised  higher  by  merely  repairing 
the  dam,  that  interrupts  the  prescriptive  right.  See  Cowell  v.  Thayer,  5 
Met.  253,  for  an  elaborate  examination  of  this  point.  But  this  subject  will 
be  more  fully  considered  in  the  next  chapter. 

«  Vooght  V.  Winch,  2  B.  &  Aid.  662. 

2  Borden  v.  Vincent,  24  Pick.  301;  Stiles  v.  Hooker,  7  Cow.  266;  Per- 
ley  V.  Hilton,  55  N.  H.  445.  And  see  Lawrence  v.  Fairhaven,  5  Gray, 
114. 


WATER.  251 

the  practice  of  pouring  the  water  will  not  alone  be  evidence 
that  the  land  from  which  the  water  is  sent  has  become  subject 
to  the  servitude  of  supplying  water,  and  that  the  owner  of 
such  land  is  bound  to  continue  to  send  water  to  his  neighbor's 
ground ;  other  and  additional  circumstances,  however,  may- 
exist,  which  will  have  the  effect  of  establishing  such  an  obli- 
gation on  the  originator  of  the  stream — as,  for  instance,  that 
the  stream  was  originally  intended  to  be  permanent,  or  if  the 
supply  of  water  is  continuous,  that  the  originator  had  perma- 
nently abandoned  mining  works  from  which  the  stream  arose 
and  from  which  it  continued  to  flow." 

An  easement  may  be  acquired  in  the  land  of  another  for 
drip  of  eaves  upon  his  land ;  and  this  may  also  be   -Qnx,  of 
by  prescription  or  grant.^  ^^^^^• 

That  all  riparian  owners  of  natural  streams  have  a  riparian 
right  to  use  the  water  as  it  flows  past  their  land,    ^.n^cts  of 
so  long  as  they  do  not  interfere  with  the  natural   appropria- 

^  "^    ,         ,  .         tion  01 

rights  of  other  riparian  owners,  and  to  sue  for  dis-    flowing 
turbance,  is  now  an  established  doctrine  of  law,  but   particular 
this  doctrine  was  not  established  until  comparatively   P^^'po^es. 
modern  times ;  and  in  the  earlier  decisions   of  the  courts  a 
theory  of  a  very  different  kind  was  advanced,  by  which  rights 
were  supposed  to  be  acquired  by  the  appropriation  of  water, 
similar  to  those  rights  which  have  since  been  held  to  belong 
to  all  riparian  proprietors  of  streams  ex  jure  naturce.     The 
earliest  doctrine  on  this  subject  appears  to  have  been,  that 
flowing  water  was  the  property  of  no  one,  and  that  nobody 
had   any  particular  right  to   use   it  until   somebody  actually 
took  possession  and  applied  it  to  a  purpose  of  utility  —  that 
by  so  doing  he  acquired  a  right    to  continue  the  use  of  it 
against  all  the  world,  and  that  his  right  continued  until  he 

"  Gaved  v.  Martyn,  19  C.  B.  N.  S.  732;  34  L.  J.  C.  P.  353;  Wright  v. 
Williams,  1  M.  &  W.  77;  5  L.  J.  N.  S.  Exch.  107;  Arkwriglit  v.  Gell,  5 
M.  &  W.  203;  8  L.  J.  N.  S.  Exch.  201 ;  Mason  v.  Shrewsbury  and  Hereford 
Railway  Co.  per  Cockburn,  C.  J.,  L.  E.  6  Q.  B.  at  p.  588;  40  L.  J.  Q.  B. 
at  p.  298. 

1  See  Carbrey  v.  Willis,  7  Allen,  370;  Bloch  v.  Pfaff,  101  Mass.  539; 
Bellows  V.  Sackett,  15  Barb.  96. 


252  ACQUISITION   OF   EASEMENTS. 

chose  to  abandon  his  user."'  This  theory-  of  title  by  appro- 
priation was  much  modified  by  various  decisions, as  the  nature 
of  riparian  rights  was  brought  more  fully  under  considera- 
tion,^ and  ultimately  it  was  determined  that  these  riparian 
rights  to  the  use  and  uninterrupted  flow  of  streams  were  not 
acquired  by  appropriation  at  all,  but  that  they  existed  and 
belonged  to  every  riparian  owner  of  land  ex  jure  naturce^ 
whether  he  chose  to  make  use  of  them  or  not.^  When,  how- 
ever, this  change  of  opinion  first  ai-ose,  it  was  also  held  that 
the  effect  of  appropriation  was  to  give  the  ripai-ian  owner  a 
right  to  sue  for  disturbance,  for  it  was  conceived  that  he  could 
not  sustain  any  damage  by  loss  of  water  until  he  had  applied 
it  to  a  purpose  of  utility  and  that  purpose  was  disturbed,  for 
actual  damage  was  always  considered  essential  to  support  an 
action  on  the  case.^  In  process  of  time,  however,  this  theory 
was  also  abandoned  ;  and  it  appears  now  to  be  considered  that 
an  action  will  lie  for  every  disturbance  of  riparian  rights  with- 
out evidence  of  appropriation  of  the  water  for  any  purpose 
of  utility,  and  without  even  proof  of  any  special  damage,  but 
simply  on  the  ground  that  a  legal  right  is  injured  by  the  dis- 
turbance, and  that  this  is  sufficient  damage  to  support  the 
action."  Appropriation  of  the  water  of  flowing  streams  for 
purposes  of  utility  has  thus  gradually  fallen  from  being  con- 
sidered a  means  of  acquiring  important  water  rights,  to  being 
deemed  of  no  importance  whatever,  whether  as  a  mode  of 
gaining  a  right,  or  of  acquiring  a  right  to  sue  for  disturbance. 
Appropriation  of  water  which  flows  into  a  well  through  the 
Appropri-  surrouudiug  soil,  gives  no  right  to  the  owner  of  the 
water  In  a  ^®^^  ^^^^  *^®  ^°^^  shall  not  be  drained  by  the  oper- 
^'^^'-  ations   of   owners  of   adjoining  land   in    their  own 

"  Williams  v.  Morland,  2  B.  &  C.  910;  2  L.  J.  K.  B.  191. 

=^  Mason  v.  Hill,  5  B.  &  Ad.  1 ;  2  L.  J.  N.  S.  K.  B.  118.  In  the  case  of 
Cocker  v.  Cowper  (5  T^tw.  103),  Parke,  B.,  is  reported  to  have  said,  that 
"  the  doctrine  of  appropriation  has  been  much  cut  down  in  Mason  v.  Hill." 

V  Sampson  v.  Hoddinott,  1  C.  B.  N.  S.  at  p.  611  ;  2G  L.  J.  C.  P.  at  p. 
150 ;  Mason  v.  Hill,  5  B.  &  Ad.  1  ;  2  L.  J.  N.  S.  K.  B.  118. 

"  See  judgment  of  Sir  John  Leach,  V.  C,  in  Wright  v.  Howard,  1  Sim. 
&  St.  190;  1  L.  J.  Ch.  94. 

"  See  post,  chapter  IV. 


WATER.  253 

ground  —  nor  even  that  the  water  already  collected  in  the 
well  shall  not  be  drawn  away  by  then-  workings.  That  there 
is  no  natural  right,  and  that  no  prescriptive  right  can  be  ac- 
quired to  the  uninterrupted  flow  of  underground  water  which 
percolates  through  the  soil  in  undefined  or  unknown  channels, 
has  been  already  shown  ;  and  the  act  of  digging  a  well  to  re- 
ceive such  water  cannot  confer  any  right  upon  the  owner  of 
the  well  to  the  exclusive  use  of  water  percolating  through  the 
surrounding  soil.  As  long,  however,  as  the  water  remains  in 
the  well  it  is  the  property  of  the  owner  of  the  well,  but  it  re- 
mains his  only  so  long  as  it  continues  in  his  possession ;  and 
he  cannot  maintain  an  action  against  any  person  who,  by  the 
exercise  of  a  lawful  act  in  his  own  soil,  causes  the  water  to 
escape  from  his  custody.*  And  the  law  had  been  so  settled 
in  America  long  before  it  seems  to  have  been  in  England. ^ 

If  such  diversion  from  another's  well  is  done  maliciously, 
some  cases  incline  to  hold  the  party  doing  so  liable,^  wliile 
others  think  the  motive  is  immaterial,  since  he  had  a  legal 
right  to  do  the  act  itself.^ 

PURITY    OP    WATER. 

With  regard  to  the  next  class  of  easements  in  water  — 
namely,  those  which  relate  to  purity  of  water  —  it  has  been 

&  Chasemore  v.  Richards,  7  H.  L.  C.  349;  29  L.  J.  Exch.  81  ;  Acton  v. 
Blundell,  12  M.  &  W.  324  ;  13  L.  J.  Exch.  289;  New  River  Co.  v.  John- 
son, 2  El.  &  El.  435;  29  L.J.  M.  C.  93;  Ballacorkish  Mining  Co.  v. 
Duoibell,  L.  R.  5  P.  C.  49  ;  43  L.  J.  P.  C.  19;  Phelps  v.  Nowlen,  72  N.  Y. 
39. 

1  See  Greenleaf  v.  Francis,  18  Pick.  117  (1836)  ;  Parker  v.  Boston  and 
Maine  Railroad,  3  Cush.  107;  Roath  v.  Driscoll,  20  Conn.  533  ;  Chatfield 
V.  Wilson,  28  Vt.  49  ;  Wheatley  v.  Baugh,  25  Penn.  St.  528 ;  New  Albany- 
Railroad  V.  Peterson,  14  Ind.  112;  Ellis  v.  Duncan,  21  Barb.  230;  Village 
of  Delhi  V.  Youmans,  45  N.  Y.  362;  Chase  v.  Silverstone,  62  Me.  175,  an 
elaborate  judgment  by  Judge  Virgin.  So  far  as  the  early  cases  of  Smith 
V.  Adams,  6  Paige,  435;  and  Dexter  v.  Providence  Aqueduct  Co.  1  Story, 
387,  contain  anything  contrary  to  this  principle,  they  must  be  considered 
as  overruled. 

2  See  Greenleaf  v.  Francis,  18  Pick,  at  p.  122;  Chasemore  v.  Richards, 
5  H.  &  N.  990,  Am.  ed.;  Wheatley  v.  Baugh,  25  Penn.  St.  533. 

3  See  Chatfield  v.  Wilson,  28  Vt.  49. 


254  ACQUISITION   OF   EASEMENTS. 

pointed  out  that  all  riparian  owners  have  a  natural  right  that 
the  water  of  natural  streams  shall  be  suffered  to  remain  in 
its  natural  pure  state.^  There  is  no  such  natural  right  in  con- 
nection with  artificial  streams,  but  it  is  obvious  that  much  dif- 
ference exists  between  injuries  from  interruption  of  the  flow 
of  water  and  injuries  from  pollution  of  water,  for  interrup- 
tion of  the  flow  of  water  may  arise  from  the  exercise  of  a 
lawful  act  by  a  person  on  his  own  soil,  but  polluting  a  stream 
of  water  involves  a  nuisance  on  the  land  of  other  persons,  and 
a  trespass  by  the  sending  of  impure  matter  on  to  their  soil. 
The  cases  are,  therefore,  not  analogous,  and  consequently  the 
law  is  not  identical. 

No  right  to  have  the  water  of  an  artificial  stream  uninter- 
Right  by  rupted  can  be  acquired  by  mere  appropriation  of  the 
douTo  pu"  water  ;  and  no  action  for  interruption  can  be  main- 
rityofarti-  tained  against  the  originator  of  the  stream,  nor 
streams.  against  persons  through  whose  land  the  water  flows, 
unless  a  right  to  the  uninterrupted  flow  has  been  acquired  ;  but 
it  was  said  in  Wood  v.  Waud,*^  that  if  either  the  originator  of 
an  artificial  stream,  or  others,  polluted  the  waters  so  as  to  be 
injurious  to  the  tenant  below,  the  case  would  be  different. 
From  this  passage  in  the  judgment  of  the  court,  it  would  ap- 
pear that  mere  appropriation  of  the  water  of  an  artificial 
stream  for  a  purpose  of  utilit}-  is  sufficient  to  confer  a  right 
on  the  appropriator,  that  the  water  shall  not  be  polluted  to 
his  detriment  by  any  person  who  has  not  acquired  a  right  to 
pollute  it ;  the  point,  however,  is  not  free  from  doubt,  and 
Whaieyu.  the  case  of  Whaley  v.  Laing"^  should  be  noticed  as 
Lamg.         bearing  on  the  subject.     In  that  case,  which  was 

^  See  ^lerrifield  v.  Lombard,  13  Allen,  16;  Dwight  Printing  Co.  v.  Bos- 
ton, 122  Mass.  583. 

<=  3  Exch.  at  p.  779;  18  L.  J.  Exch.  at  p.  314.  Though  there  can  be 
no  right,  natural  or  by  prescription,  to  the  uninterrupted  flow  of  under- 
ground water,  percolating  through  the  soil;  yet  it  is  a  wrongful  act,  in  the 
absence  of  an  easement,  to  pollute  such  water  to  the  injury  of  another 
person.  Hodgkinson  v.  Ennor,  4  B.  &  S.  229;  32  L.  J.  Q.  B.  231.  But 
see  Brown  v.  IlHus,  25  Conn.  583. 

'i  2  11.  &  N.  476;  26  L.  J.  Exch.  327;  in  Exchequer  Chamber,  3  H  &N. 
675 ;  27  L.  J.  Exch.  422  ;  Stockport  Waterworks  Co.  v.  Potter,  per  Brara- 
well,  B.,  3  H.  &  C.  300. 


WATER.  255 

taken  to  the  Exchequer  Chamber,  in  which  court  the  judges 
were  divided  in  opinion,  it  appeared  that  a  canal  had  been 
formed  through  land  belonging  to  one  Anderton,  and  the 
plaintiff,  who  had  mines  under  Anderton's  land,  obtained  per- 
mission from  him,  and  from  the  canal  company,  to  make  a  cut 
through  the  land  to  the  canal,  for  the  purpose  of  taking  water 
from  the  canal  to  supply  his  engines.  Chemical  works  were 
afterwards  erected  by  the  defendants,  and  they  commenced 
pouring  muriatic  acid  into  the  canal,  which  mixed  with  the 
water  and  passed  from  the  canal  to  the  plaintiff's  boilers, 
which  were  consequently  injured.  The  question  was,  whether 
the  plaintijff,  as  he  had  no  legal  right  to  the  water,  but  merely 
a  license  to  use  it,  could  sue  the  defendants  for  the  damage. 
The  form  of  the  declaration  caused  considerable  difficulty  in 
determining  the  right  of  the  plaintiff  to  maintain  the  action, 
but,  apart  from  the  question  of  pleading,  the  judges  in  the 
Court  of  Exchequer  were  unanimous  in  determining  that  the 
plaintiff  was  entitled  to  succeed.  During  the  argument,  Mar- 
tin, B.,  said,  that  the  sole  question  was,  whether  the  plaintiff 
had  a  sufficient  right  to  sustain  the  action  against  a  stranger 
and  a  wrong-doer,  and  he  thought  he  had,  because  he  was  in 
actual  possession  of  the  flow  of  tvater  ;  Bramwell,  B.,  how- 
ever, thought  that  there  was  only  a  right  or  license  to  take 
the  water  from  time  to  time,  when  the  plaintiff  wanted  it ; 
that  he  had  not  any  legal  right  to  the  flow  of  water  in  its  ac- 
customed manner  ;  and  that  as  the  water  was  polluted  when 
he  took  it,  he  had  never  been  in  possession  of  any  right  to  it 
otherwise  than  in  a  polluted  state.  The  judgment  was  in 
favor  of  the  plaintiff,  on  the  ground  that  the  plaintiff  had,  by 
permission  of  the  owners  of  the  canal,  got  possession  of  a  cer- 
tain quantity  of  water  in  his  cistern,  which  water  he  was  en- 
titled to  pump  up  from  the  cistern,  as  he  would  have  been  en- 
titled to  use  it  if  he  had  taken  it  up  in  a  bucket,  —  that  upon 
emptying  his  cistern  other  water  flowed  in  from  the  canal  to 
supply  its  place,  and  that  in  consequence  of  the  defendant's 
act,  foul  water  flowed  to  the  cistern,  and  that  act,  being  with- 
out justification  as  to  the  defendant,  gave  the  plaintiff  a  cause 
of  action.     It  was  particularly  said  in  the  judgment,  that  the 


256  ACQUISITION   OF   EASEMENTS. 

court  gave  no  opinion  whether  the  plaintiff  had  any  posses- 
sory title  to  the  water  in  the  canal,  so  that  if  the  defendants 
had  stopped  its  flow  to  the  plaintiff,  or  if  the  plaintiff  had,  in 
order  to  get  the  water,  to  go  to  the  canal  with  a  bucket,  and 
had  drawn  it  foul  from  the  canal,  any  action  could  have  been 
maintained,  but  that  the  judgment  proceeded  on  the  ground 
that  the  defendants  caused  foul  water  to  flow  on  the  plaintiff's 
premises  without  right  to  do  so.  In  the  Exchequer  Chamber 
six  judgments  were  delivered  by  the  respective  judges,  and 
much  difference  of  opinion  prevailed,  but  this  was  attributa- 
ble mainly  to  the  form  of  the  declaration.  Willes  and  Crow- 
der,  JJ.,  thought  the  judgment  of  the  court  below  should  be 
affirmed  on  the  ground  that  the  plaintiff  was  in  possession, 
and  the  defendant  was  a  wrong-doer.  Crompton  and  Erie, 
J  J.,  thought  that  the  declaration  indirectly  claimed  a  right  to 
the  flow  of  water,  and  not  being  supported  by  the  evidence 
of  any  legal  right,  the  plaintiff  could  not  recover ;  but  they 
added,  that  they  did  not  say  that  an  action  might  not  lie  if  a 
man  had  permission  from  the  owner  of  a  pond  to  get  water 
for  his  cattle,  and  if  a  stranger,  knowing  the  probable  and 
natural  effect  of  his  act,  poisoned  the  water  so  that  the  cattle 
were  injured  —  that  probably  in  such  a  case  an  action  would 
lie,  but  that  the  right  of  action  would  be  founded  not  on  the 
title  or  right  to  the  water,  but  on  the  injury  to  tlie  property 
of  the  plaintiff.  Williams,  J.,  thought  the  declaration  was 
bad  in  substance,  and  that  judgment  should  be  arrested,  but 
that  the  plaintiff  was  entitled  to  the  verdict.  He  agreed  with 
the  barons  of  the  Exchequer  that  no  right  to  the  water  was 
intended  to  be  claimed  by  the  declaration,  but  that  it  merely 
meant  that  the  defendants  had  no  right  to  foul  the  water  ;  but 
even  if  that  \\^re  so  the  declaration  should  also  have  shown 
that  the  plaintiff  was  not  a  wrong-doer  in  taking  the  water, 
for  that  if  he  was  a  wrong-doer  he  would  have  no  cause  of  ac- 
tion. Wightman,  J.,  thought  the  defendants  were  entitled  to 
judgment,  for  that  the  plaintiff  had  no  legal  right  to  the 
water,  and  that  as  against  him  the  defendants  could  not  be 
considered  wrong-doers.  Laying  aside,  therefore,  the  ques- 
tions which  arose  from  the  form  of  the  declaration,  it  will  be 


WATER.  257 

seen  that  the  majority  of  the  judges  in  the  Exchequer  Cham- 
ber approved  of  the  decision  of  the  court  below. 

The  decision  of  Kindersley,  V.  C,  in  the  case  of  "Wood  v. 
Sutchffe,*  is  somewhat  at  variance  with  the  doctrine  Wood  v. 
that  a  right  of  action  for  poHution  of  the  water  of  Sutcliffe. 
an  artificial  stream  may  be  acquired  merely  by  appropriating 
the  water,  and  applying  it  to  a  purpose  of  utility.  The  bill 
was  filed  for  the  purpose  of  obtaining  an  injunction  to  restrain 
pollution  of  the  water  of  an  artificial  stream  ;  and  the  plain- 
tifiE  claimed  a  right  to  purity  of  water  by  prescription,  by 
reason  of  twenty  years'  enjoyment :  the  vice  chancellor  said 
that  there  is  no  doubt  that  a  person  establishing  works  on  a 
stream  may,  by  long  user  of  the  water  of  that  stream,  al- 
though he  has  no  proprietorship  of  the  river  or  the  water,  ac- 
quire a  right  such  as  that  which  the  plaintiffs  insisted  they  had, 
and  he  is  reported  to  have  added,  that  not  only  may  a  person 
acquire  such  a  right,  but  that  a  right  may  also  be  acquired  to 
pollute  water  of  an  artificial  or  other  stream  by  prescription. 
This  report  would  lead  a  reader  to  infer  that  the  vice  chancel- 
lor thought  that  no  right  to  purity  of  water  could  be  acquired 
by  mere  appropriation,  but  that  twenty  years'  enjoyment  of 
pure  water  was  necessary  before  the  right  could  be  gained ; 
and,  also,  that  no  right  to  pollute  could  be  gained  except  by 
user  for  twenty  years.  There  can  be  no  doubt  that  a  person 
may  acquire  a  prescriptive  title  to  purity  of  water  by  enjoy- 
ment for  twenty  years  ;  but  if  the  right  cannot  be  gained 
by  mere  appropriation,  this  difficulty  arises,  that  during  the 
twenty  years,  although  a  person  fouling  the  water  has  no 
right  to  pollute  it,  and  causes  incalculable  injury,  yet,  that 
the  person  injured  has  no  remedy  against  him,  because  he  has 
no  right  that  the  water  shall  remain  pure,  and  the  wrongful 
pollution  may  consequently  be  continued  with  impunity.  The 
passage  above  referred  to  in  the  case  of  Wood  v.  Waud,  and 
the  judgments  in  the  case  of  Whaley  v.  Laing,  seem  to  estab- 
lish that  the  injured  party  would  have  a  right  to  sue,  although 
he  possessed  no  legal  right  which  had  been  infringed  ;  the 
reason,  however,  given  in  the  judgment  of  the  lower  court  in 

«  2  Sim.  N.  S.  163  ;  21  L.  J.  Ch.  253. 
17 


258  ACQUISITION   OF  EASEMENTS. 

the  latter  case  why  he  would  be  entitled  to  sue  can  hardly 
be  considered  satisfactory,  whereas,  Martin,  B,,  expressed  an 
opinion  of  a  more  satisfactory  nature  during  the  argument  — 
namely,  that  the  injured  person  would  have  a  sufficient  right 
to  purity  of  the  water  to  sustain  an  action  for  pollution 
against  a  stranger  and  a  wrong-doer,  for  the  simple  reason 
that  he  was  in  actual  possession  of  the  jiow  of  ivater  at  the 
time  the  pollution  was  first  caused  ;  or,  in  other  words,  that 
he  had  acquired  a  possessory  title  by  appropriation,  and  that 
though  such  appropriation  would  not  confer  any  right  that 
the  water  should  not  be  diverted  or  obstructed  by  the  lawful 
act  of  another  person  on  his  own  soil,  yet  that  it  was  suffi- 
cient to  confer  a  right  that  an  injurious  act  should  not  be  com- 
mitted to  his  detriment,  by  a  man  who  possessed  no  legal  jus- 
tification for  the  commission  of  the  injury/ 

A  right  to  pollute  water,  whether  of  an  artificial  or  of  a 
natural  stream,  may  be  acquired  by  grant,  express  or 
tion  of  implied,  or  by  prescription.  Such  a  right  is  gained 
pollute*  by  prescription  if  the  pollution  has  been  continued, 
streams.  ^^^^  ^f  ^j^^  stream  has  been  prejudicially  affected  to 
the  detriment  of  a  person  against  whom  the  right  is  claimed 
for  the  full  period  of  twenty  years,  provided  the  latter  has 
submitted  to  the  injury  during  that  period.^  ^ 

It  frequently  happens  that  pollution  of  water  of  streams  is 
„    .         for  a  considerable  time  imperceptible,  or  that,  at  all 

Pollution  ,         ■,        .  ^  .        ^  ,  .         . 

gradually  eveuts,  the  detriment  sustained  by  riparian  propri- 
mcreasing.  ^^^^.g  jg  g^  g^jgi^i;  \\^^^  \^  jg  j-jq^^  qu  account  of  the  act- 
ual injury,  worth   consideration,  or  that  the  damage  is  too 

/See  Tenant  v.  Goldwin,  1  Salk.  360  ;  2  Ld.  Raym.  1089;  Hodgkinson 
V.  Ennor,  4  B.  &  S.  229  ;  32  L.  J.  Q.  B.  231. 

s  Wright  V.  Williams,  1  M.  &  W.  77;  5  L.  J.  N.  S.  Exch.  107;  Wood 
r.  Waud,  3  Excb.  748;  18  L.  J.  Excb.  305;  Wood  v.  Sutcliffe,  2  Sim. 
N.  S.  163;  21  L.  J.  Ch.  253;  Murgatroyd  v.  Robinson,  7  E.  &  B.  391; 
26  L.  J.  Q.  B.  233. 

1  That  a  right  to  pollute  water  may  also  in  this  country  be  acquired  by 
prescription,  if  sufficiently  clear  and  explicit,  see  McCallun  v,  German- 
town  Water  Co.  54  Penn.  St.  40,  a  very  instructive  case  on  this  point; 
and  other  cases  cited  in  note,  ante,  p.  64;  Prentice  v.  Geiger,  74  N.  Y. 
341. 


WATER.  259 

trifling  for  the  courts  to  recognize,  and  that  the  polhition  then 
gradually  increases  till  at  length  it  becomes  a  serious  nuisance 
and  causes  substantial  injury.  This  often  occurs  when  the 
drainage  of  towns  is  made  to  flow  into  a  watercourse  or  river 
—  when  a  town,  small  at  first,  produces  sewage  small  in  quan- 
tity, and  causes  little  or  no  injury,  but  by  gradually  increas- 
ing in  size,  by  the  addition  of  new  streets  and  houses,  at 
length  produces  an  increased  amount  of  sewage,  and  so  ren- 
ders the  stream  little  better  than  a  common  sewer,  and  then 
the  riparian  owners  find  themselves  totally  deprived  of  the 
water  they  had  formerly  used  in  a  pure  state.  If  in  such  case 
the  drainage  into  the  stream  has  continued  more  than  twenty 
years,  though  the  foulness  of  the  water  has  been  perceptible 
or  injurious  for  less  than  that  period,  the  question  arises 
whether  any  right  has  been  acquired  to  pollute  the  water, 
and,  if  a  right  has  been  gained  by  prescription,  as  to  the  ex- 
tent of  the  riglit  and  the  amount  of  injury  to  which  the  ripa- 
rian proprietors  are  bound  to  submit.  The  latter  question 
belongs  to  a  subsequent  part  of  this  work,  when  the  extent  of 
easements  will  be  considered,  but  here  it  may  be  remarked, 
that  it  is  a  matter  of  doubt  whether  any  right  to  pollute  the 
water  can  be  acquired  by  such  user.  Goldsmid  v.  Qoidsmid 
The    Tunbridere  Wells    Improvement   Commission-   f •.{""" 

.         .  bridge 

ers  "  was  a  case  of  this  kind.  It  appears  that  a  brook  Weils  Im- 
flows  near  the  town  of  Tunbridge  Wells,  and  that  Commis^-" 
an  act  of  parliament  was  passed  to  enable  the  de-  ^'°"'^'^^- 
fendants  to  drain  the  town  and  make  sewers,  and  to  turn  any 
drain  or  sewer  into  any  common  ditch  or  watercourse;  that 
Tunbridge  Wells  had  of  late  years,  before  the  suit,  greatly 
increased  in  extent,  and  at  the  time  of  the  suit  was  still  in- 
creasing ;  that  the  drainage  of  the  town  had  been  much  im- 
proved, and  that  a  considerable  increase  of  sewage  had  been 
carried  into  the  drains  and  thence  to  the  brook,  and  that  the 
water  of  the  brook,  which  was  formerly  pure  and  suitable  for 
drinking  and  household  purposes,  was  no  longer  fit  to  drink  or 
for  domestic  use  on  account  of  the  pollution.     The  plaintiff 

'^  L.  R.  1  Eq.  161;  35  L.  J.  Ch.  88;  on  appeal,  L.  11.  1  Ch.  App.  349; 
35  L.  J.  Ch.  382. 


260  ACQUISITION   OF  EASEMENTS. 

was  a  riparian  proprietor.  In  delivering  judgment  in  the 
cause  the  master  of  the  rolls  said :  "  The  evidence  rather 
points  to  something  like  this,  that  the  thing  has  been  going 
on  for  such  a  number  of  years  that  it  would  be  too  late  to 
complain  of  it  now;  in  fact,  one  witness  says  it  has  been 
going  on  for  fifty  years  —  several  say  it  has  been  going  on  for 
twenty  years.  I  have  no  doubt  it  has  been  extending  for  some 
time,  and  that  it  has  been  perceptible  to  some  extent  for  some 
time,  at  all  events  from  1846  "  (the  case  was  argued  in  1865) 
—  "  as  soon  as  the  first  local  act  came  into  operation.  And  it 
is  to  be  observed  that  the  amount  of  the  sewage  will  show  its 
influence  in  the  direct  proportion  to  the  quantity  that  is  sent 
forth  on  a  greater  extent  of  country ;  that  is  to  say,  a  certain 
amount  of  sewage  may  produce  injurious  effects  gradually  di- 
minishing for  a  mile,  and  a  greater  amount  of  sewage  may 
produce  greater  injurious  effects  which  may  extend  for  two 
miles  ;  but  I  do  not  doubt  that  there  is  some  point  at  which, 
probably,  with  almost  any  amount  of  sewage,  the  stream 
would  be  ultimately  comparatively  pure,  and  that  it  is  only  a 

question  of   degree It  is  important  to  observe  what 

the  position  of  a  gentleman  in  the  situation  of  the  plaintiff  is. 
If  he  comes  to  the  court  and  complains  very  early,  then  the 
evidence  is,  that  '  it  is  not  perceptible  '  —  'it  is  wholly  inap- 
preciable '  —  and  you  get  evidence  after  evidence  for  the  de- 
fendants (the  pollution  being  slight  and  perhaps  only  observ- 
able at  some  times  and  on  some  occasions),  saying,  '  You  have 
no  proof  at  all  that  there  is  any  appreciable  pollution,  and  you 
must  wait  until  it  becomes  a  nuisance.'  Then  he  waits  five 
or  six  years  until  it  is  obvious  to  everybody's  sense  that  the 
pollution  is  considerable,  and  then  they  say,  '  You  have  come 
too  late,  you  have  allowed  this  to  go  on  for  twenty  years,  and 
we  have  acquired  an  easement  over  your  property,  and  a 
right  of  pouring  the  sewage  into  it.'  My  opinion  is,  that  any 
person  who  has  a  watercourse  flowing  through  his  land,  and 
sewage  which  is  perceptible  is  brought  into  that  watercourse, 
has  a  right  to  come  here  to  stop  it ;  and  that  when  the  pollu- 
tion is  increasing,  and  gradually  increasing  from  time  to  time, 
by  the  additional  quantity  of  sewage  poured  into  it,  the  per- 


WATER.  261 

sons  who  allow  the  polluted  matter  to  flow  into  the  stream 
are  not  at  liberty  to  claim  any  right  or  prescription  against 
him."  On  appeal,  Turner,  L.  J.,  with  the  concurrence  of 
Knight  Bruce,  L.  J.,  said :  "In  the  course  of  the  argument 
upon  these  points,  it  was  suggested  on  the  part  of  the  plain- 
tiff, that  unless  the  court  interposed,  a  prescriptive  right  to 
discharge  the  sewage  into  the  stream,  to  the  prejudice  of  the 
plaintiff's  estate,  might  be  acquired  by  the  defendants  ;  to 
which  it  was  answered  on  the  part  of  the  defendants  that 
such  prescriptive  right,  if  it  could  at  all  be  acquired,  had  been 
already  acquired  by  them.  It  will  be  convenient,  therefore, 
first  to  dispose  of  this  point,  and  I  am  of  opinion  that  the  de- 
fendants have  not  acquired  any  such  prescriptive  right.  I  as- 
sume, but  without  meaning  to  give  any  opinion  upon  the 
point,  that  such  a  right  might  well  be  acquired,  but  then  I 
think  that  it  could  be  acquired  only  by  a  continuance  of  the 
discharge  of  the  sewage  prejudicially  affecting  the  estate,  at 
least  to  some  extent,  for  the  period  of  twenty  years,  and  I 
think  that  the  evidence  sufficiently  shows  that  the  discharge 
has  not  prejudicially  affected  the  estate  for  so  long  a  period." 
If,  therefore,  a  right  to  pollute  a  stream  can  be  acquired  by 
prescription  when  the  pollution  is  at  first  slight  and  imper- 
ceptible, but  gradually  increases,  it  would  seem  that  the  pre- 
scriptive period  would  begin  to  run  when  the  pollution  was 
first  perceptible  and  prejudicially  affected  the  servient  estate, 
or  in  other  words,  when  the  servient  owner  first  became  con- 
scious of  the  injury,  and  had  an  opportunity  of  resisting  the 
user  by  suit  or  action. 

The  third   and  last  class  of  easements  which  can  be  ac- 
quired in  water  are  rights  to  take  water  for  use.     If   „.  ^^ 

.  .  .  „     .      Right  to 

a  stream  is  natural,  it  has  been  explained  that  all  ri-   take  water 

parian  owners  have  a  natural  right  to  use  the  water 
as  it  flows  by  their  land,  and  that  they  may  take  water  from 
the  stream  for  consumption  on  their  riparian  estates,  pro- 
vided they  do  not  cause  sensible  injury  to  oth^r  riparian  pro- 
prietors. There  is  no  such  natural  right  to  take  water  from 
artificial  streams,  and  no  riparian  owner  has  a  right,  until  he 


262  ACQUISITION   OF  EASEMENTS. 

has  used  the  water  for  twenty  years,  that  riparian  owners 
liigher  up  the  stream  should  not  prevent  the  water  flowing 
down  to  him  in  its  accustomed  manner;  but  instead  of  a  nat- 
ural right  to  take  the  water  of  artificial  streams  for  use,  ripa- 
rian owners  have  a  sort  of  proprietary  right  to  take  it  while  it 
remains  on  their  land,  and  riparian  owners  lower  down  the 
stream,  until  they  have  acquired  an  easement,  cannot  prevent 
their  so  doing.  Thus  in  Wood  v.  Waud'  it  was  said  :  "  The 
proprietor  of  the  land  through  which  the  Bowling  Sough  flows 
has  no  right  to  insist  on  the  colliery  owners  causing  all  the 
water  from  their  works  to  flow  through  their  land.  These 
owners  merely  get  rid  of  a  nuisance  to  their  works  by  dis- 
charging the  water  into  the  sough,  and  cannot  be  considered 
as  giving  it  to  one  more  than  another  of  the  proprietors  of  the 
land  thiough  which  that  sough  is  constructed  ;  each  may  take 
and  use  what  passes  through  his  land,  and  the  proprietor  of 
the  land  has  no  right  to  any  part  of  that  water  until  it  has 
reached  his  own  land  ;  he  has  no  right  to  compel  the  owners 
above  to  permit  the  water  to  flow  through  their  land  for  his 
benefit,  and  consequently  he  has  no  right  of  action  if  they  re- 
fuse to  do  so."  And  this  principle  was  deliberately  followed 
in  a  recent  important  case  before  the  Privy  Council,^  where 
Wood  V.  Waud  was  fully  approved. 

A  right  to  take  water  for  use  to  any  extent,  either  from  a 
Acquisi-  ii'^^tural  or  artificial  stream  or  from  a  pool  of  water 
tion  by  or  a  well  situate  wholly  in  another  person's  land,  may 
prescrip-  be  acquired  by  grant,  express  or  implied,  or  by  pre- 
scription, and  it  will  be  noticed  that  the  use  of  water 
is  one  of  the  classes  of  easements  expressly  mentioned  in  the 
Prescription  Act  as  being  capable  of  acquisition  under  that 
statute.-' 

'■  3  Excli,  at  p.  779;  18  L.  J.  Excli.  at  p.  14. 

^  Rameshur  Persbad  Narain  Singh  v.  Koonj  Behari  Pattuk,  4  App.  Cas. 
121  (1879). 

J  It  has  been  shown  that  a  riglit  to  take  water  in  the  land  of  another 
person  is  an  easement,  and  not  a  i)rofit  a  pi-endre  ;  ante,  chapter  I.  p.  7. 


WAYS.  263 


WAYS. 

Rights  of  way  —  that  is,  private  rights  of  way,  for  they 
alone  are  easements  —  may  be  acquired  by  grant,  ex-  Wa3's,  how 
press  or  implied,  or  by  prescription ;  this  chiss  of  acquired, 
easements  being  expressly  provided  for  in  the  Prescription 
Act ;  *  but  a  private  right  of  way  can  in  no  case  be  acquired  bj'' 
dedication,  whether  it  be  designed  for  the  use  of  a  private  in- 
dividual or  of  a  body  of  persons — as  the  inhabitants  of  a 
parish.  The  public  alone  can  take  a  right  of  way  by  dedica- 
tion ;  inhabitants  of  a  parish  or  any  other  body  must  take  by 
grant.' 

One  of  the  most  common  modes  of  acquiring  a  right  of  way 

in  America  is  by  prescription  ;  but  as  such  method    „, 

.  .  Waj'sby 

of  acquisition  has  been  so  fully  discussed  in  the  first   prescrip- 

section  of  this  chapter,  and  most  of  the  illustrations 
there  given  were*cases  of  easements  of  this  character,  it  is  un- 
necessary to  repeat  what  was  there  laid  down. 

Many  questions  relative  to  grants  of  rights  of  way  have 
arisen  in  consequence  of   vendors  of   land  usinej  in    ^ 

■'•  °  .         Grants  by 

their  deeds  of  conveyance  general  words  only  with   general 

reference  to  easements  intended  to  be  granted,  such 

as  the  word  "  appurtenances,"  or  the  phrase  "  with  the  ways 

and  other  easements  used  and  enjoyed  with  the  land."     It  is 

obvious  that  if  rights  of  way  are  strictly  appurtenant  to  land 

which  is  being  conveyed,  that  is,  if  they  ai'e  rights  which  the 

vendor  is  entitled  to  enjoy  in  the  land  of  another  person,  they 

are  not  newly  created  rights  when  they  are  assigned  to  the 

purchaser,  but  pass  to  him  as  a  part  of  the  land  purchased  ; 

but  that  if  the  vendor  has  been  in  the  habit  of  using  a  way 

over  a  part  of  his  own  ground  which  he  is  not  selling,  the  way, 

if  any  right  thereto  is  given  to  the  purchaser,  is  an  easement 

*  The  Prescription  Act  does  not  preclude  rights  of  way  from  being 
claimed  and  ac(iuired  by  prescription  at  common  hiw.  Ilolford  v.  Hankin- 
son,  5  Q.  B.  584. 

'  Vestry  of  Bcrmondsey  v.  Brown,  35  Beav.  226;  L.  R.  1  Eq.  Cas.  204. 
And  see  Wilder  v.  St.  Paul,  12  Minn.  208;  Hale  v.  McLeod,  2  Mete.  (Ky.) 
98. 


264  ACQUISITION   OF  EASEMENTS. 

newly  created  by  the  deed  of  conveyance,  for  it  was  not  an 
easement  before  severance  of  the  property.  These  cases  are 
essentially  different,  and  it  has  been  shown  that  with  refer- 
ence to  grants  of  ways  or  other  easements  by  general  words, 
different  forms  of  words  will  pass  a  way  strictly  appurtenant 
from  those  which  are  requisite  to  pass  or  newly  grant  a  way 
which  the  vendor  has  been  in  the  habit  of  using  during  unity 
of  ownership.  This  matter  has  already  been  treated  at 
length  when  the  subject  of  grants  was  under  consideration, 
and  it  is  therefore  unnecessary  again  to  discuss  the  subject. 

A  matter  of  some  importance  to  be  considered  in  connec- 
Grant  of  tion  with  grants  of  rights  of  way  is  the  effect  of 
shmvn  in  pli^^s  which  show  roads  either  made  or  intended  to 
plans.  be  made,  annexed  to  conveyances  or  leases  of  land, 

or  exhibited  at  the  time  of  a  sale,  and  which  may  in  the  lat- 
ter case  operate  as  an  inducement  to  a  person  to  buy  the  land. 
Of  coui'se  if  the  roads  are  marked  on  the  pltin  as  being  over 
the  property  of  a  person  other  than  the  vendor,  if  there  is  no 
road  really  there,  or  no  right  of  way  over  the  road,  the  exhi- 
bition of  the  plan  could  have  no  effect  whatever  in  the  crea- 
tion of  a  right  of  way,  the  only  result  being  possibly  a  right 
of  action  by  the  purchaser  who  had  been  deceived  against  the 
vendor  for  the  misrepresentation.  But  if  the  soil,  where  the 
road  is  represented  in  the  plan  as  being,  is  the  property  of  the 
vendor,  a  very  different  question  arises,  namely,  whether  the 
purchaser  would  not  become  entitled  to  a  right  of  way  over 
the  land  marked  as  road  in  the  plan.  If  the  plan  should  be 
expressly  referred  to  in  the  deed  of  conveyance,  and,  in  fact, 
be  embodied  in  the  deed  by  reference,  though  the  way  might 
not  be  otherwise  referred  to,  it  seems  probable  that  the  deed 
and  the  plan  together  would  operate  as  a  grant  of  a  right  of 
way,  or  that  the  vendor  would  be  estopped  from  denying  the 
easement;  but  if  the  plan  should  be  merely  exhibited  at  a 
sale  of  land  and  there  should  be  no  reference  to  it  in  the  con- 
veyance it  is  difficult  to  see  by  what  precise  means  the  pur- 
chaser could  become  entitled  to  a  right ;  it  scarcely  seems 
there  could  be  any  grant  implied  ;  for  to  imply  such  a  grant 
would  be  like  adding  a  term  to  a  written  contract  by  parol 


WAYS.  265 

evidence,  nor  is  it  likely  that  there  could  be  any  right  by  es- 
toppel ;  for  there  is  nothing  in  the  deed  whereby  the  vendor 
could  be  estopped ;  the  probability  therefore  is  that  the  pur- 
chaser would  acquire  no  right  to  a  way  at  all ;  but  possibly  he 
could  sue  the  vendor  for  damages.  In  the  case  of  Glave  v. 
Harding,"*  Pollock,  C.  B.,  appeared  to  have  an  opinion  that 
the  mere  exhibition  of  a  plan  at  a  sale  showing  a  road  would 
have  the  effect  of  entitling  a  purchaser  to  a  right  of  way,  but 
it  was  not  necessary  to  determine  this  for  the  purpose  of  de- 
ciding the  case,  and  it  was  intimated  that  the  other  judges  did 
not  entertain  the  same  view.  If,  however,  in  addition  to  the 
plan,  roads  and  ways  corresponding  with  those  shown  in  the 
plan  are  mentioned  in  the  deed  of  conveyance,  though  there 
may  be  no  grant  of  them  in  terms,  there  is  no  doubt  the  deed 
and  the  plan  together  may  operate  as  a  grant  of  right  of  way, 
even  though  there  are  no  roads  made  in  the  places  shown  in 
the  plans." 

THE    AMERICAN    DOCTRINE 

on  this  subject  is,  that  if  land  be  conveyed  as  bounding  upon  a 
street,  described  in  the  deed,  and  the  grantor  has  no  interest 
in  the  street  so  described,  and  did  not  profess  to  have,  the 
mere  reference  to  such  street  does  not  create  an  implied  cove- 
nant between  the  grantor  and  the  grantee  that  such  a  street 
has  been  legally  laid  out,  on  which  the  grantor  can  be  held 
liable  to  the  grantee,  if  the  street  be  afterwards  closed  by 
those  having  a  right  so  to  do.^     But  that  where  the  grantor 

"'  3  H.  &  N.  944;  27  L.  J.  Exch.  at  p.  292. 

"  Espley  V.  Wilkes,  L.  R.  7  Exch.  298;  41  L.  J.  Exch.  241;  Harding  v. 
Wilson,  2  B.  &  C.  96. 

^  See  Howe  v.  Alger,  4  Allen,  206,  qualifying  some  of  the  earlier  dicta 
in  Massachusetts,  apparently  contra;  Brainard  v.  Boston  and  New  York 
Central  Railroad  Co.  12  Gray,  407;  In  re  Mercer  Street,  4  Cow.  542; 
Underwood  v.  Stuyvesant,  19  Johns.  181;  Livingston  r.  Mayor  of  New 
York,  8  Wend.  85.  Howe  v.  Alger  was  subsequently  approved  in  Hen- 
nessey 1'.  Old  Colony  Railway  Co.  101  Mass.  541.  And  a  fortiori,  such 
a  deed  does  not  imply  a  covenant  that  the  grantor  will  grade  the  street 
so  described,  or  make  it  suitable  for  travel;  but  merely  that  the  grantee 
may  pass  and  repass  upon  it.  Hennessey  v.  Old  Colony  Railway  Co.  101 
Mass.  540. 


266  ACQUISITION   OF   EASEMENTS. 

in  such  case  is  the  owner  of  the  adjoining  land,  described  in 
his  deed  as  an  existing  street,  he  is  thereby  estopped  to  deny 
the  existence  of  such  street,  and  from  setting  up  any  chiim,  or 
doing  any  acts  inconsistent  with  the  grantee's  use  of  the  street 
or  way  ;  and  such  estoppel  applies  to  the  grantor,  or  his 
heirs,  and  to  those  subsequently  claiming  under  him.^  And 
this  doctrine  of  estoppel  arises  not  only  when  the  street  or 
wa}''  is  described  in  the  deed  itself  ;  ^  but  also  where  the  deed 
merely  refers  to  a  plan  on  which  the  street  is  drawn ;  for  by 
such  reference  the  plan  is,  for  that  purpose,  made  a  part  of 
the  deed  itself ;  especially  where  it  is  recorded  in  the  same  of- 
fice or  registry  where  the  deed  is  entered  for  record.^  And 
such  estoppel  extends  not  only  to  the  way  or  street  immedi- 
ately adjoining  the  land  granted,  but  to  all  other  connecting 
ways  which  are  shown  on  the  plan  so  referred  to,  which  will 
enable  the  grantee  to  reach  public  ways  in  any  direction ;  to 
the  extent  at  least  of  the  ownership  of  the  grantor  in  such 
connecting  streets.*  Whether  such  estoppel  exists  when  the 
deed  neither  defines  the  way  nor  refers  to  a  plan,  but  a  plan 
is  actually  shown  at  the  sale,  indicating  a  street,  and  oral 
representations  to  that  effect  are  made  as  tlie  inducement  of 
the  sale,  does  not  seem  to  have  been  judicially  settled. 

Rights  of  way  of  necessity  are  acquired  by  implied  grant. 
■^  q£  a  grant  of  a  way  of  necessity  is  presumed  to  have 
necessity,  been  made  whenever  land  has  been  sold  which  is  in- 
accessible except  by  passing  over  the  adjoining  land  of  the 
grantor  or  by  committing  a  trespass  upon  the  land  of  a  stran- 

^  Howe  V.  Alger,  supra,  at  p.  265;  Farnsworth  v.  Taylor,  9  Gray,  162; 
Rodgers  v.  Parker,  lb.  445;  O'Linda  v.  Lothrop,  21  Pick.  292;  Parker  v. 
Framingham,  8  Met.  260;  Howard  v.  Rogers,  4  H.  &  J.  278  ;  Sinyles  v. 
Hastings,  22  N.  Y.  217,  and  24  Barb.  44;  Tufts  v.  Cliarlestown,  2  Gray, 
271;  White  i;.  Flannigain,  1  Md.  542  ;  Parker  v.  Smith,  17  Mass.  413. 

2  As  in  Tufts  v.  Charlestown,  2  Gray,  271;  Gaw  v.  Hughes,  111  Mass. 
296. 

8  Farnsworth  v.  Taylor,  9  Gray,  162;  Fox  v.  Union  Sugar  Refinery,  109 
Mass.  292. 

*  Fox  V.  Union  Sugar  Refinery,  109  Mass.  292,  and  cases  cited.  See, 
also,  Tobey  v.  Taunton,  119  Mass.  410;  Stetson  v.  Dow,  16  Gray,  372; 
Thomas  v.  Poole,  7  Gray,  83 ;  Rodgers  v.  Parker,  9  Gray,  445. 


WAYS.  267 

ger,  or  when  an  owner  of  land  sells  a  portion  and  reserves  a 
part  wliicli  is  inaccessible  except  by  passing  over  the  land 
sold.  This  species  of  right  has  been  recognized  from  very- 
early  times,  and  is  said  to  depend  upon  the  principle  that 
when  a  grant  is  made,  every  right  is  also  presumed  to  have 
been  granted,  without  which  the  subject  of  the  grant  would 
be  useless.  This  principle  may  well  be  applied  to  the  case  of 
a  grant  of  land-locked  land,  for  the  grantor  then  gives  the  way 
of  necessity  ;  but  the  case  is  different  if  he  reserves  the  soil 
which,  is  land-locked,  for  then  it  is  not  he  but  the  grantee  who 
must  be  presumed  to  grant  the  way,  and  it  is  difficult  to  see 
why  the  grantor,  who  does  not  expressly  reserve  a  way  for 
himself,  should  become  entitled  to  a  way  of  necessity  under 
an  implied  grant,  since  a  man  who  sells  land  and  reserves  an 
adjoining  house  does  not  become  entitled  by  implied  grant  to 
a  right  to  light  for  windows  overlooking  the  land  unless  he 
expressly  reserves  such  an  easement  in  the  deed  of  convey- 
ance : "  it  may  be  that  the  right  is  given  on  the  ground  of 
public  policy,  that  the  land  may  not  be  rendered  useless  and 
unprofitable  :  but  whatever  may  be  the  principle  upon  which 
the  right  is  presumed  to  have  been  granted,  the  law  has  al- 
ways and  in  every  case  annexed  a  right  of  way  of  necessity  to 
the  ownership  of  land-locked  ground  when  that  and  the  sur- 
rounding land  have  been  severed  by  sale.^ 

A  way  of  necessity  can  be  acquired  only  when  a  landowner 
has  no  other  way  to  his  ground.    It  has  sometimes  been  thought 

°  In  Suflield  V.  Brown,  4  De  G.,  J.  &  S.  185;  33  L.  J.  Ch.  at  p.  259, 
Lord  Westbury,  speaking  of  implied  reservations  of  apparent  and  con- 
tinuous easements,  said:  "I  cannot  agree  that  the  grantor  can  derogate 
from  his  own  absolute  grant  so  as  to  claim  rights  over  the  thing  granted, 
even  if  they  were  at  the  time  of  the  grant  continuous  and  apparent  ease- 
ments enjoyed  by  an  adjoining  tenement  which  remains  the  property  of 

him  the  grantor The  absolute  sale  and  grant  of  the  land  in  or  over 

which  they  are  claimed  is  inconsistent  with  the  continuance  of  anything 
abridging  the  complete  enjoyment  of  the  thing  granted." 

■P  Clark  V.  Cogge,  Cro.  Jac.  170;  Gayford  v.  Moffatt,  L.  R.  4  Ch.  App. 
133;  Pinnington  v.  Galland,  9  Exch.  1;  22  L.  J.  Exch.  348;  Howton  v. 
Frearson,  8  T.  K.  50;  Holmes  v.  Goring,  2  Bing.  76  ;  2  L.  J.  C.  P.  134; 
Dand  v.  Kingscote,  6  M.  &  W.  174;  9  L.  J.  N.  S.  Exch.  279. 


268  ACQUISITION   OF  EASEMENTS. 

that  a  Avay  of  necessity  could  be  claimed  if  a  person  had  none 
^  ^  .  but  an  inconvenient  way  to  his  land,  and  this  view 
necessity  has  been  supported  by  a  dictum  of  Mansfield,  C.  J., 
there  is  no  in  the  case  of  Morris  v.  Edgington.^  That  learned 
ot  erway.  j^fjgg  said:  "  I  say  nothing  of  what  is  a  way  of  ne- 
cessity ;  I  know  not  how  it  has  been  expounded,  but  it  would 
not  be  a  great  stretch  to  call  that  a  necessary  way,  without 
which  the  most  convenient  and  reasonable  mode  of  enjoying 
the  premises  could  not  be  had  ;  "  and  a  similar  view  was  ex- 
pressed with  regard  to  a  watercourse  in.  a  recent  case,*"  but  the 
balance  of  authority  shows  that  a  man  cannot  acquire  a  way 
of  necessitj^  if  he  has  any  other  means  of  access  to  his  land, 
however  inconvenient  it  may  be,  than  by  passing  over  his 
neighbor's  soil/ 

Every  right  of  way  of  necessity  is  founded  upon  a  presumed 
For  a  w  grant,  and  unless  a  grant  can  be  presumed,  no  way  of 
of  neces-  necessity  can  be  claimed,  even  though  an  owner  is  in 
must  be  consequence  totally  deprived  of  all  means  of  access  to 
presume  .  j^j^  land.  A  grant  of  this  kind  is  generally  presumed 
when  property  in  land  has  been  severed  by  sale,  and  when 
one  portion  is  inaccessible  except  by  passing  over  the  other,  or 
by  trespassing  on  the  land  of  a  stranger.  No  grant  of  right 
of  way  over  the  stranger's  land  can  be  presumed,  and  there- 
fore no  way  of  necessity  over  that  land  can  be  acquired,  but  a 
grant  by  the  owner  of  one  of  the  severed  portions  to  the  owner 
of  the  other  can  be  presumed,  and  therefore  a  way  of  neces- 
sity over  his  soil  can  be  claimed.  In  the  case  of  Bullard  v. 
Harrison,'  Lord  Ellenborough,  C.  J,,  complained  of  the  plead- 
ings in  the  action  because  the  plea,  he  said,  "  seems  to  suppose 
that  whenever  a  man  has  not  another  way,  he  has  a  right  to 
go  over  his  neighbor's  close.  But,"  he  added,  "that  is  not 
so  ;  "  and  that  a  way  of  necessity  is  a  thing  founded  in  grant. 

1  3  Taunt,  at  p.  31. 

'•  Watts  V.  Kelson,  L.  R.  6  Ch.  App.  at  p.  175;  40  L.  J.  Ch.  at  p.  129. 

»  Holmes  v.  Goring,  2  Bing.  76  ;  2  L.  J.  C.  P.  134;  Proctor  v.  Hodgson, 
10  Exch.  824;  24  L.  J.  Exch.  195;  Dodd  r.  Burchell,  1  H.  &  C.  113  ;  31 
L.  J.  Exch.  364.     See  Lawton  v.  Rivers,  2  McCord,  445. 

«  4  M.  &  S.  387. 


WAYS.  269 

For  this  reason  it  has  been  held  that  there  can  be  no  way  of 
necessity  if  the  inaccessible  land  has-  been  acquired  by  es- 
cheat ;  "  and  for  the  same  cause  a  landowner  cannot  create  a 
way  of  necessity  over  his  neighbor's  soil  by  any  act  of  his 
own,  as,  for  instance,  by  building  a  house  to  which  he  has  no 
means  of  access  except  by  crossing  his  neighbor's  land,  unless, 
indeed,  his  neighbor  sold  him  the  site  of  the  house  for  the  ex- 
press purpose  that  the  house  should  be  built.^ 

THE    AMERICAN    LAW. 

The  American  decisions  are  quite  in  harmony  with  the 
English  upon  this  subject,  and  support  the  right  of  ^  ^, 
way  by  necessit}'^,  both  to  the  grantee,^  legal  or  equit-  necessity. 
able,2  and,  by  reservation,  to  the  grantor,^  even  if  he  has  given 
a  warranty  deed  of  the  land  over  which  he  claims  a  way,  free 
from  all  incumbrances;*  for  by  implication  of  law  the  very  es- 
tate granted  is  an  estate  in  fee,  with  a  right  of  way  reserved 
or  carved  out  thereof,  in  the  same  manner  as  if  such  right  had 
been  expressly  reserved  in  the  deed.  The  right  is  created  to 
one  of  two  simultaneous  grantees,^  or  co-devisees  under  the 
same  will,^  over  the  land  of  the  other  ;  or  to  tenants  in  com- 

"  Proctor  V.  Hodgson,  10  Exch.  824;  24  L.  J.  Exch.  195. 

*"  Roberts  v.  Karr,  1  Taunt,  per  Lord  EUenborough,  C.  J.,  at  p.  498  ; 
Davies  v.  Sear,  L.  R.  7  Eq.  427;  38  L.  J.  Ch.  545;  Espley  v.  Wilkes,  L.  R. 
7  Exch.  298;  41  L.  J.  Exch.  241. 

1  Hohnes  v.  Seely,  19  Wend.  507;  New  York  Life  Ins.  Co.  v.  Milnor, 
1  Barb.  Ch.  353;  Kimball  v.  Cochecho  Railroad,  7  Foster,  448;  Brakeley 
V.  Sharp,  9  N.  J.  Eq.  9  ;  S.  C.  10  N.  J.  Eq.  206  ;  Wheeler  v.  Gilsey,  35 
How.  (N.  Y.)  139;  Wissler  v.  Hershey,  23  Penn.  St.  333;  Thomas  v. 
Bertram,  4  Bush  (Ky.),  317;  Brown  v.  Berry,  6  Cold.  (Tenn.)  98;  Sny- 
der V.  Warford,  11  Mo.  513;  Smyles  v.  Hastings,  22  N.  Y.  217. 

2  Simmons  v.  Sines,  4  Abb.  Dec.  (N.  Y.)  246. 

8  Nichols  V,  Luce,  24  Pick.  104;  Amer.  Co.  u.  Bradford,  27  Cal.  366; 
Pingree  v.  McDuffie,  56  N.  H.  306;  Bowen  v.  Conner,  6  Cush.  132. 

*  Brigham  v.  Smith,  4  Gray,  297.  This  reservation  might  not  exist 
in  favor  of  a  grantor,  when  he  knows  the  whole  estate  conveyed  is  to 
be  covered  by  a  building,  or  otherwise  used  for  a  purpose  absolutely  incon- 
sistent with  any  right  of  way  over  it.     Seeley  v.  Bishop,  19  Conn.  128. 

^  Collins?;.  Prentice,  15  Conn.  39. 

6  Tracy  v.  At^ierton,  35  Vt.  53;  Pearson  v.  Spencer,   1  B.   &  S.  580; 


270  ACQUISITION   OF  EASEMENTS. 

mon  making  partition  of  the  estate  by  which  the  portion  of 
one  is  excluded  from  tlie  highway.  So  whether  a  grant  be 
vokmtary  or  invokmtary,  as  where  title  is  acquired  by  a  levy 
of  execution.^  An  execution  creditor  who  levies,  by  metes 
and  bounds,  upon  a  lot  which  has  no  contact  with  a  highway, 
acquires  a  right  by  necessity  over  adjoining  land  of  Ids  debtor^ 
even  though  he  might,  with  equal  convenience,  have  taken 
other  land  of  his  debtor  in  satisfaction  of  the  execution,^  or 
might  have  expressly  included  such  right  in  his  levy,  but  did 
not  do  so. 

It  may  not  be  strictly  exact  to  say  it  is  a  right  of  way  hy 
necessity,  for  necessity  will  not  of  itself  justify  an  entry  upon 
another's  lands.  It  is  only  a  circumstance  resorted  to  for  the 
purpose  of  ascertaining  the  intention  of  the  parties  to  a  grant 
and  raising  an  implied  grant.  It  is  a  mode  of  proving  the 
voluntary  grant ;  and  when  so  proved  the  effect  is  the  same  as 
if  an  express  grant  had  been  made,^  It  exists,  therefore,  only 
when  there  has  been  a  grant.  But  this  right  certainly  depends 
upon  necessity.  It  has  been  said  to  exist  "  only  where  the 
person  claiming  it  has  no  other  means  of  passing  from  his  es- 
tate into  the  public  street  or  road."  ^  Perhaps  b}^  "  necessity  " 
is  not  meant  an  "  absolute  physical  necessity."  Probably  a 
"  reasonable  necessity  "  would  be  sufficient,  as  if  a  way  over 
the  land  of  the  party  claiming  the  right  could  not  be  made 
without  unreasonable  labor  and  expense.^ 

Fetters  v.  Humphreys,  18  N.  J.  Eq.  260.  See  Smyles  v.  Hastings,  24  Barb. 
44  ;  S.  C.  on  appeal,  22  I^.  Y.  217. 

1  Pernani  v.  Wead,  2  Mass.  203;  Russell  v.  Jackson,  2  Pick.  573. 

2  Taylor  v.  Townsend,  8  Mass.  417,  Parker,  J.  And  if  different  cred- 
itors successively  levy  upon  portions  of  the  fi'ont  land  of  their  debtor,  each 
creditor  leaving  access  to  the  highway  for  the  debtor  except  the  last,  the 
debtor's  right  of  way,  by  necessity,  is  only  over  the  estate  of  that  creditor 
whose  first  levy  creates  the  necessity,  and  not  over  the  land  of  those  who 
had  previously  levied.     Russell  v.  Jackson,  2  Pick.  573. 

2  See  Nichols  v.  Luce,  24  Pick.  104. 

*  Gayetty  v.  Bethune,  14  Mass.  55;  Brigham  v.  Smith,  4  Gray,  297; 
O'Rorke  V.  Smith,  11  R.  I.  262;  Lide  v.  Hadley,  36  Ala.  627;  Viall  v. 
Carpenter,  14  Gray,  126;  Smith  v.  Kinard,  2  Hill  (S.  C),  642;  Alley  v. 
Carleton,  29  Tex.  78. 

6  Pettingill  v.  Porter,  8  Allen,  1;  Oliver  v.  Pitman,  98  Mass.  50;  Car- 


WAYS.  271 

Mere  convenience  will  not  be  suflBcient ;  ^  nor  "  even  great 
convenience."  The  existence  of  a  bluff  across  the  land,  sep- 
arating the  rest  of  the  land  from  the  highway,  which  it  is 
"  exceedingly  difficult  to  pass,"  but  which  is  not  impassable, 
does  not  give  the  right  to  pass  over  another's  land,  though, 
perhaps,  "  an  impassable  mountain,  river,  or  other  barrier," 
might.2  And  the  fact  that  it  would  cost  $200  or  |300  to 
build  a  road  over  the  land  to  the  highway  has  been  held  not 
sufficient  to  give  a  way  by  necessity.^ 

This  right  of  way  by  necessity  is  not  confined  to  other  land 
of  the  grantor  immediately  adjoining  the  land  granted.  For 
if  A.  owns  an  inaccessible  lot,  and  also  another  bounding  on  a 
highway,  but  which  are  separated  by  the  intervening  land  of 
B.,  over  which  A.  has  a  right  by  prescription  to  pass  from  his 
front  lot  to  his  rear  lot,  a  grant  of  the  rear  lot  conveys  his 
prescriptive  way  over  the  land  of  B.,  and  also  a  way  by  ne- 
cessity, in  continuation  thereof,  over  his  front  lot  to  the  high- 
way.^ 

Whenever  the  necessity  exists,  as  before  explained,  the 
right  of  way  exists  over  land  of  the  grantor,  although  the 
grantee  might  have  a  private  way  laid  out  for  him  over  land 
of  other  adjoining  owners,  upon  application  to  the  public  au- 
thorities, and  making  compensation  therefor,  according  to  the 
statutes  in  some  states  provided.^    Whether  the  former  would 

brey  v.  Willis,  7  Allen,  364;  Leonard  v.  Leonard,  2  Allen,  543;  Ewart 
V.  Cochrane,  7  Jur.  N.  S.  925  (not  in  the  Reports) ;  White  v.  Bradley, 
66  Me.  254. 

1  Trask  v.  Patterson,  29  Me.  499;  Anderson  v.  Buchanan,  8  Ind.  132; 
Hall  V.  McLeod,  2  Mete.  (Ky.)  98;  Ogden  v.  Grove,  38  Penn.  St.  487. 
And  therefore  A.  has  no  right  to  pass  from  one  part  of  his  farm  to  another, 
over  intervening  land  of  B.,  merely  because  it  is  much  shorter  and  more 
convenient  than  to  go  around  by  the  public  road. 

2  Nichols  V.  Luce,  24  Pick.  105  ;  Oliver  v.  Pitman,  98  Mass.  50. 

8  Allen  V.  Kincaid,  11  Me.  155.  And  if  the  grantor  owns  other  land  in 
severalty,  over  which  the  grantee  may  have  a  convenient  way  to  the  high- 
way, he  does  not  acquire  a  right  over  another  lot  owned  by  the  grantor 
and  others,  tenants  in  common,  merely  because  this  is  more  convenient  for 
him.      Collins  v.  Prentice,  15  Conn.  423. 

*  Leonard  v.  Leonard,  2  Allen,  543. 

5  Pernam  v.  Wead,  2  Mass.  203;  Collins  v.  Prentice,  15  Conn.  423. 


272  ACQUISITION   OF   EASEMENTS. 

continue  after  the  latter  had  in  fact  been  lawfully  acquired, 
will  be  considered  in  a  subsequent  chapter. 

BY    STATUTE. 

In  many  American  states  statutes  exist,  as  before  stated,  by 
which,  on  the  petition  of  a  landowner  who  is  remote  from  a 
highway,  the  public  authorities  have  power  to  lay  out  a  way  for 
him  over  intervening  land  to  the  public  road,  the  damages  for 
which  to  the  landowner  are  to  be  paid  by  the  party  benefited. 
But  as  the  Constitution  of  the  United  States,  as  well  as  of 
most  separate  states,  forbids  the  taking  of  private  property, 
except  for  "  public  uses,"  without  the  owner's  consent,  the 
question  has  often  arisen  whether  such  statutes  are  constitu- 
tional ;  and  there  is  some  difference  of  opinion  in  the  courts 
upon  this  question,  arising,  perhaps,  from  the  different  lan- 
guage of  the  statutes  in  question.  In  New  York  and  many 
other  states  they  have  been  repeatedly  declared  contrary  to 
the  Constitution  and  void,  and  the  party  using  the  way  so  laid 
out  has  been  held  a  trespasser.^  And  therefore  in  some  states 
the  Constitution  has  been  amended  expressly  authorizing  the 
laying  out  of  such  ways,  as  in  New  York ;  but  the  question 
still  remains  whether  they  are  not  repugnant  to  the  Constitu- 
tion of  the  United  States,  which  makes  no  such  provision. 

On  the  other  hand,  in  Massachusetts  and  some  other  states, 
such  statutes  have  been  held  to  be  constitutional,  because,  by 
force  of  the  statute  in  such  states,  such  ways  are  not  merely 
for  private  use,  but  though  laid  out  at  the  special  instance  of 
a  private  person,  they  are  open  to  the  public  for  travel,  and 
under  the  control  of  the  public  authorities,  and  may  be  dis- 
continued when  they  see  fit,  and  the  town  is  liable  for  injuries 
to  travelers  therein,  in  the  same  manner  as  in  public  high- 
ways ;  2  and,  therefore,  they  are  quasi  public  ways,  although 

1  Taylor  v.  Porter,  4  Hill,  140  ;  White  v.  Clack,  2  Swan,  230;  Osbora 
V.  Hart,  24  Wis.  89;  Sadler  v.  Langham,  34  Ala.  311  ;  Nesbitt  v.  Trumbo, 
39  111.  110;  Dickey  v.  Tennison,  27  Mo.  373  ;  Bankhead  v.  Brown,  25  Iowa, 
540,  a  very  able  case  on  this  point;  Stewart  v.  Hartman,  46  Ind.  331; 
Wild  V.  Deig,  43  Ind.  455.  See,  also,  6  Am.  Law  Rev.  197;  Withain  v. 
Osburn,  4  Oregon,  318. 

2  Proctor  V.  Andover,  42  N.  H.  348. 


WAYS.  273 

called  by  different  names,  such  as  "  private  and   particular 
ways,"  "  pent  roads,"  "  township  roads,"  &c.i 

A  more  delicate  question  still  arises,  whether  a  private  way 
can  be  lawfully  laid  out,  not  terminating  in  any  public  road, 
but  merely  connecting  two  lots  of  A.,  and  laid  out  over  an  in- 
tervening lot  of  B.  Such  a  way  was  sustained  in  a  case  in 
Connecticut,^  though  the  constitutionality  of  the  act  was  not 
decided.  But  elsewhere  the  validity  of  an  act  allowing  such 
a  proceeding  has  been  more  than  questioned.^ 

1  See  Denham  v.  County  Commissioners,  108  Mass,  202;  Flagg  v.  Flagg, 
16  Gray,  175;  Hickman's  case,  4  Plarrington,  580;  Perrine  v.  Farr,  2 
Zab.  356;  Warren  v.  Bunnell,  11  Vt.  600;  Metcalf  v.  Bingtiara,  3  N.  H. 
459;  Clark  v.  Boston,  &c.  Railroad,  4  Foster,  118. 

2  Reynolds  v.  Reynolds,  15  Conn.  83. 

3  See  Robinson  v.  Swope,  12  Bush  (Ky.),  21  ;  Hall  v.  Commissioners  of 
Lincoln,  62  Me.  325.     And  see  Killbuck  v.  Private  Road,  77  Penn.  St.  39. 

18 


CHAPTER  III. 

ON  THE  EXTENT  AND  MODE  OF  USER  OF  EASEMENTS. 

Sect.  1.  —  On  the  Extent  and  Mode  of  User  of  Easements 

generally. 

When  easements  have  been  acquired  by  one  of  the  modes 
Limit  and  pointed  out  in  the  preceding  chapter,  it  is  very  im- 
user^of^  portant  that  a  dominant  owner  should  be  fully  ac- 
easements.  quainted  With  the  limit  and  how  he  is  entitled  to 
make  use  of  his  right,  that  he  may  not  by  excessive  user  com- 
mit a  trespass  against  the  servient  owner,  or  by  checking  his 
user  unconsciously  deprive  himself  of  some  part  of  his  lawful 
enjoyment.  For  the  servient  owner  this  knowledge  is  also 
essential,  that  he  may,  on  the  one  hand,  prevent  encroach- 
ment by  the  dominant  owner,  and  any  increase  of  the  burden 
on  the  servient  estate  ;  and,  on  the  other  hand,  that  he  may 
not,  by  undue  interference  with  the  user  of  the  right,  involve 
himself  in  needless  litigation  with  the  dominant  owner.  In 
the  case  of  natural  rights,  too,  it  is  essential  to  understand 
their  extent  and  legitimate  mode  of  enjoyment ;  for  the  nat- 
ural rights  of  one  person  are,  in  some  cases,  limited  by  those 
of  others,  and  the  natural  rights  of  the  one  do  not  entitle 
him  to  the  absolute  and  uncontrolled  enjoyment  of  the  whole 
of  the  subject  of  those  rights  :  but  they  are  so  restricted  that 
the  natural  right  of  others  may  not  be  unduly  curtailed  or 
rendered  useless  by  his  enjoyment.  To  give  an  instance  of 
this,  riparian  proprietors  of  a  natural  stream  have  rights  to 
the  uninterrupted  flow  of  the  stream,  and  also  to  use  the 
water  as  it  flows  past  their  land  ;  these,  however,  are  not  ab- 
solute and  uncontrolled  rights,  but  being  somewhat  conflicting 
are  each  limited  by  the  other,  so  that  all  riparian  proprietors 
may  have  a  due  and  reasonable  enjoyment  of  both  :  one  pro- 


EASEMENTS   GENERALLY.  275 

prietor  may  not  use  and  consume  so  much  of  the  water  as  to 
deprive  another  of  the  beneficial  effect  of  the  flow  of  the 
stream,  and  the  other  cannot  insist  upon  having  the  flow  so 
uninterrupted  that  the  first  shall  not  use  and  consume  any  of 
the  water  for  the  benefit  of  his  estate  :  it  has,  on  this  princi- 
ple, been  said  that  "  if  the  user  of  the  stream  by  the  plain- 
tiff for  irrigation  was  merely  an  exercise  of  his  natural  right, 
such  user,  however  long  continued,  would  not  render  the  de- 
fendant's tenement  a  servient  tenement,  or  in  any  way  affect 
the  natural  rights  of  the  defendant  to  use  the  water."  "  But 
although  natural  rights  cannot,  except  in  the  manner  and  to 
the  extent  just  mentioned,  be  affected  or  curtailed  by  the 
natural  rights  of  other  persons,  they  may  be  abridged  or  ab- 
solutely suspended  by  easements  acquired  adversely  to  those 
rights  :  for  instance,  a  riparian  proprietor  of  a  natural  stream 
has  a  natural  right  to  the  uninterrupted  flow  of  the  water, 
yet  another  person  may,  by  twenty  years'  user,  acquire  an 
adverse  easement,  entitling  him  to  divert  the  course  of  the 
stream  or  diminish  the  quantity  of  the  water  accustomed  to 
flow  to  the  riparian  proprietor  by  consuming  it  upon  his 
land.* 

If  an  easement  has  been  granted  by  deed,  the  ordinary  rule 
which  governs  in  similar  cases  prevails,  namely,  that  Measure  of 
the  rights  of  the  parties  to  the  deed  must  be  ascer-  granted"by 
tained  from  the  words  of  the  deed,  and  the  extent  ^eed. 
of  the  easement  cannot  be  determined  from  any  other  source.* 
But  though  this  is  the  general  rule,  it  is  subject  to  the  modi- 
fication that  surrounding  circumstances  may  be  taken  into 
consideration  in  order  to  ascertain  the  intention  of  the  parties 

«  Sampson  v.  Hoddinott,  1  C.  B.  N.  S.  at  p.  611;  26  L.  J.  C.  P.  at  p. 
150;  Einbrey  v.  Owen,  6  Exch.  353;  20  L.  J.  Exch.  212;  Wright  v.  How- 
ard, 1  Sim.  &  St.  190;  1  L.  J.  Ch.  94. 

6  Bealey  v.  Shaw,  6  East,  209;  Wright  v.  Howard,  1  Sim.  &  St.  190; 
1  L.  J.  Ch.  94. 

c  Whitehead  v.  Parks,  2  H.  &  N.  870;  27  L.  J.  Exch.  169;  Northam  v. 
Hurley,  1  E.  &  B.  665;  22  L.J.  Q.  B.  183;  Hodgson  v.  Field,  7  East,  613  ; 
Henning  v.  Burnet,  8  Excli.  187  ;  22  L.  J.  Excli.  79  ;  WilHams  v.  James, 
L.  R.  2  C.  P.  577  ;  36  L.  J.  C.  P.  256  ;  Blatchford  v.  Mayor  of  Plymouth, 
8  Bin<r.  N.  C.  691  ;  6  L.  J.  N.  S.  C.  P.  217. 


276  EXTENT   AND   MODE   OF  USER   OF   EASEMENTS. 

to  the  deed,^  for  it  might  operate  very  unjustly  that  a  grant 
should  be  construed  in  its  widest  sense,  irrespectively  of  the 
condition  of  things  to  which  it  had  reference  when  it  was 
made'*  or  if  it  were  construed  so  strictly  that  the  intended 
benefit  of  a  grant  might  be  lost,  owing  to  some  change  in  cir- 
cumstances external  to  the  subject  of  the  grant.* 

Although  the  extent  of  an  easement,  acquired  by  deed,  may 
be  indefinite  by  the  terms  of  the  deed,  yet  its  extent  may  be 
fixed  by  the  use  made  thereof  by  the  grantee.  Thus,  where 
a  railroad  company  obtained  by  deed  a  right  to  lay  an  iron 
pipe  through  another's  land,  to  convey  water  from  a  spring, 
which  also  supplied  the  grantor's  land,  and  the  grantees  laid 
down,  and  used  for  several  years,  merely  a  two-inch  pipe,  it 
was  held  that  the  extent  of  the  right  was  thereby  limited,  and 
that  they  could  not  substitute  a  four-inch  pipe.^ 

1  See  Hull  v.  Fuller,  4  Vt.  199;  Fitzhugh  v.  Raymond,  49  Barb.  646. 
<i  Wood  V.  Saunders,  L.  R.  10  Ch.  582  ;  44  L.  J.  Ch.  514. 

«  Finlinson  v.  Porter,  L.  R.  10  Q.  B.  188;  44  L.  J.  Q.  B.  56  ;  United 
Land  Co.  v.  Great  Eastern  Railway  Co.  L.  R.  10  Ch.  App.  586  ;  44  L.  J. 
Cli.  685. 

2  Onthank  v.  Lake  Shore,  &c.  Railroad,  71  N.  Y.  194.  Earl,  J.,  said: 
"  After  the  grantee  had  once  laid  its  pipe,  and  thus  selected  the  place 
where  it  would  exercise  its  easement,  thus  granted  in  general  terms,  what 
was  before  indefinite  and  general  became  fixed  and  certain,  and  the  ease- 
ment could  not  be  exercised  in  any  other  place.  This  is  confessedly  so  in 
reference  to  rights  of  ways  granted  in  similar  terms.  Washb.  on  Easem. 
225,  240 ;  Wynkoop  v.  Burger,  12  Johns.  222.  And  the  same  rule  of  con- 
struction was  applied  to  the  right  to  lay  an  aqueduct  from  a  spring  granted 
in  general  terras  in  Jennison  i'.  Walker,  11  Gray,  423.  In  that  case  Bige- 
low,  J.,  said  :  '  Where  an  easement  in  land  is  granted  in  general  terms, 
■without  giving  definite  location  and  description  to  it,  so  that  the  part  of 
the  land  over  which  the  right  is  to  be  exercised  cannot  be  definitely  ascer- 
tained, the  grantee  does  not  thereby  acquire  a  right  to  use  the  servient 
estate  without  limitation  as  to  the  place  or  mode  in  which  the  easement  is 
to  be  enjoyed.  When  the  right  granted  has  been  once  exercised  in  a  fixed 
and  definite  course,  with  the  full  acquiescence  and  consent  of  both  parties, 
it  cannot  be  changed  at  the  pleasure  of  the  grantee.'  He  says  :  '  This 
rule  rests  on  the  principle  that  when  the  terms  of  a  grant  are  general  or 
indefinite  so  that  its  construction  is  uncertain  and  ambiguous,  the  acts  of 
the  parties  contemporaneous  with  the  grant  giving  a  practical  construction 
to  it,  shall  be  deemed  to  be  a  just  exposition  of  the  intent  of  the  parties.' 

*'  It  is  clear,  then,  that  the  right  to  lay  the  pipe  under  plaintiff's  grant 


EASEMENTS  GENERALLY.  277 

So  a  grant  of  a  right  to  open  the  grantor's  land  when  it  may 
be  found  necessary  for  the  purpose  of  laying  pipes  through  it, 
with  liberty  to  keep  and  support  such  pipes  therein  forever, 
does  not  expressly  or  by  implication  grant  a  right  to  change 
the  location  of  the  pipes,  after  they  are  once  laid.^  But  in  a 
grant  of  a  right  "  of  using  a  well  on  the  grantor's  land  and  of 
taking  water  therefrom,  by  pipes,  or  otherwise,"  the  grantee 
is  not  confined  to  taking  it  by  pipes,  but  may  take  the  water 
by  a  rope  and  bucket,  even  though  the  grantor  offers  to  lay 
a  pipe  at  his  own  expense.^ 

If  an  easement  is  created  by  a  grant  which  can  be  proved 
by  deed  the  common  rule  applies  that  the  grant  is    construc- 
to  be  construed  most  strongly  against  the  grantor,    tion  of 
It  is  necessary  to  remark  that  this  rule  has  as  much   most 
application  with  reference  to  grants  of  easements  as   against' the 
it  has  with  reference  to  any  other  kind  of  grants,  as   erantor. 
it  was  argued  in  a  recent  case  that  as  the  words  of  the  grant 
were  unusually  extensive  the  court  would  throw  upon   the 
dominant  owner,  that  is,  the  grantee,  the  strict  proof  that  he 
was  entitled  to  the  easement  he  claimed ;  but  Hall,  V.  C,  did 
not  admit  the  justice  of  that  argument,  and  said  that  no  au- 
thority was  cited  in  favor  of  that  proposition  as  applicable  to 
a  dispute  or  question  relating  to  the  extent  of  an  easement 
created  by  grant,  and  that  the  cases  that  had  been  referred  to 
to  support  the  argument  were  cases  of  rights  to  easements 
originated  by  user  in  which  the  precise  terms  of  the  grant 

was  fixed  by  the  act  of  the  grantee  and  the  acquiescence  of  the  grantor  to 
the  place  taken,  and  it  cannot  be  exercised  in  any  other  place  across  plain- 
tiflf's  land.  But  why  is  not  the  right  also  fixed  for  the  same  reasons  as  to 
the  size  of  the  pipe  and  the  quantity  of  water  to  be  diverted  ?  I  can  per- 
ceive no  reason  for  confining  the  operation  of  this  rule  to  the  mere  place 
where  the  right  is  to  be  exercised.  There  is  the  same  reason  for  applying 
it  to  the  entire  right  granted."     See,  also,  Bannon  v.  Angier,  2  Allen,  128. 

1  Chandler  v.  Jamaica  Pond  Aqueduct,  125  Mass.  550;  Jennison  v. 
Walker,  11  Gray,  423.  And  see  similar  principles  laid  down  in  Bannon 
V.  Angier,  2  Allen,  128;  Jones  v.  Percival,  5  Pick.  485. 

2  Austin  17.  Cox,  118  Mass.  58.  The  mode  of  use  may  be  changed  unless 
it  becomes  thereby  more  onerous  to  the  servient  estate.  Bissell  v.  Grant, 
35  Conn.  288. 


278  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

could  not  be  obtained."  The  vice  chancellor,  however,  added 
that  though  he  commenced  by  taking  the  above  as  the  general 
rule  of  construction,  yet  that  it  often  happens  that  the  rule 
has  not  such  application,  for  said  he,  you  must  put  a  fair  and 
reasonable  construction  upon  the  instrument  itself,  and  you 
generally  find  quite  enough  to  enable  you  to  construe  the  in- 
strument without  the  rule  having  any  influence  either  the  one 
way  or  the  other.  A  remark  to  the  same  effect  was  made  by 
Mansfield,  C.  J., -in  the  old  case  of  Morris  v.  Edgington,'' 
when  he  said,  speaking  of  a  right  of  way  granted  in  a  lease, 
"  All  deeds  are  to  be  most  strongly  taken  against  the  maker  ; 
and  all  deeds  and  writings  are  to  be  taken  secundum  subjec- 
tam  materiam.^'' 

It  has  been  said  that  an  easement*  cannot  be  acquired  by 
Grant  prescription  if  a  grant  of  that  easement  would  have 

varianc^  been  at  variance  with  the  purpose  of  an  act  of  par- 
a^'t  of'^par-  lii^^fient,  becausc,  in  such  a  case,  a  grant  cannot  be 
liament.  presumed  to  have  been  made  ;  so,  also,  if  a  grant  of 
an  easement  is  actually  made,  that  grant  is  void  if  it  is  op- 
posed to  the  purpose  of  a  statute,  but  if  the  grant  is  only 
partly  at  variance  with  an  act  of  parliament  it  may  be  good, 
if  the  easement  is  capable  of  division,  so  far  as  it  is  not  op- 
posed to  the  act,  and  void  as  to  the  remainder,  and  the  extent 
of  the  easement  will  be  limited  by  the  terms  of  the  act.  Thus, 
in  the  case  of  the  Attorney  General  v.  The  Corporation  of 
Plymouth,'  an  act  had  been  passed  to  empower  the  Corpora- 
tion of  Plymouth  to  make  a  watercourse  between  the  town  of 
Plymouth  and  the  River  Mew,  for  the  purpose  of  bringing 
water  to  the  town  to  supply  ships  lying  in  the  harbor,  and 
after  the  passing  of  the  act  the  corporation  granted  to  a  hos- 
pital in  the  town  one  fourth  part  of  certain  mills,  and  of  the 
leat  and  watercourse.  The  object  of  the  suit  was  to  set  aside 
the  grant  and  conveyance,  and  prevent  the  drawing  off  of  the 

"  Wood  V.  Saunders,  44  L.  J.  Ch.  514;  affirmed  on  appeal,  L.  R.  10  Ch. 
App.  582,  where  a  report  of  the  case  when  before  Hall,  V.  C,  is  given  in 
a  note. 

^  3  Taunt,  at  p.  30. 

•9  Beav.  67;  15  L.J.  Ch.  109. 


EASEMENTS   GENERALLY.  279 

water  for  the  supply  of  the  town  of  Plymouth.  The  master 
of  the  rolls  thought  that  it  might  reasonably  be  doubted 
whether  the  corporation,  having  been  empowered  to  make 
and  being  in  possession  of  the  watercourse  for  the  special 
purpose  mentioned  in  the  act,  could  alienate  any  part  for  a 
different  purpose  ;  that  they  must  be  considered  to  hav,e  un- 
dertaken the  performance  of  a  public  trust  and  duty  ;  and 
that  they  could  not  lawfully  divest  .themselves  of  any  part  of 
the  means  of  fully  performing  that  duty  or  executing  that 
trust ;  that  they  had  not  any  right  or  power  to  permit  any  of 
the  water  brought  by  the  leat  to  be  applied  to  other  purposes, 
except  so  much  as  might  remain  after  the  purposes  of  the  act 
were  satisfied  ;  and  that  the  words  of  the  grant  "  one  fourth 
part  of  and  in  the  said  close,  and  in  the  leat  or  watercourse 
running,  coming,  and  going  to  all  the  said  mills,"  must  be 
construed  to  mean  one  fourth  part  of  the  water  which  re- 
mained after  satisfying  the  public  purposes  of  the  act  of  par- 
liament ;  and  that  that  was  all  which  could  pass  by  the  grant. 

It  is  not  clear  whether  a  limited  right  of  this  kind   Prescrip- 
could  be  acquired  by  prescription,  but  probably  it   aTvanance 
could,  as  a  grant  of  such  a  right  might  after  long   with  an 

'  o  C3  o  o    act  01  par- 

user  be  presumed  to  have  been  made.  liament. 

If  an  easement  has  been  acquired  by  prescription^  then,  as 

there  is  no  deed  actually  in  existence,  the  extent  of   treasure  of 

the  easement   and   the  proper  mode   of    eniovment   easements 

^       *■  ''    ^  acquired 

must  be  determined  by  the  accustomed  user  of  the  by  pre- 
right.  The  determination  of  this  is  frequently  a  '^  'P '  • 
difficult  thing,  for  the  accustomed  user  may  have  been  limited 
to  one  particular  purpose  or  class  of  purposes,  simply  because 
the  dominant  owner  may  not  have  had  occasion  to  use  the 
easement  for  other  purposes,  or  it  may  have  varied  from  time 
to  time  ;  but  the  extent  of  the  right  is  a  question  which,  in 
every  disputed  case,  must  be  determined  by  a  jury,  who  must 
found  their  judgment,  not  entirely  upon  the  actual  user 
proved,  but  upon  that  user  coupled  with  surrounding  circum- 
stances.-'' 

/  Cowling  V.  Higginson,  4  M.  &  W.  245  ;  7  L.  J.  N.  S.  Exch.  265  ;  Bea- 
ley  V.  Shaw,  6  East,  209;  Ballard  v.  Dyson,  1  Taunt.  279;  Williams  v. 
James,  L.  R.  2  C.  P.  577 ;  36  L.  J.  C.  P.  256. 


280  EXTENT   AND    MODE   OF   USER   OF   EASEMENTS. 

The  existence  of  an  easement  does  not  confer  any  right  on 
Easements  the  grantee  that  the  owner  of  the  servient  tenement 
cierThe'"""  should  not  use  his  hind  in  any  way  which  is  not  in- 
consistent    consistent  with  his  enioyment  of  the  easement ;  nei- 

use  of  J    •' 

land.  ther   can  it  prevent   the  landowner  granting  to  a 

third  person  another  easement  or  right  if  it  does  not  hinder 
the  first  grantee  from  having  the  full  enjoyment  of  his  ease- 
ment. This  was  expressed  by  Buller,  J.,  in  the  case  of  Rex 
V.  Joliffe/  who,  when  speaking  of  a  right  of  way,  said :  "  This 
is  not  like  the  case  of  a  grant  of  land  to  be  used  in  a  manner 
incompatible  with  any  other  mode  of  enjoying  it ;  for  the  de- 
fendant has  only  the  liberty  of  passing  over  this  land  for  the 
purpose  of  carrying  his  coals,  and  cannot  prevent  any  other 
person  from  using  it  ;  and  if  grass  were  to  grow  on  this  way 
the  owner  of  the  land  would  have  a  right  to  feed  his  cattle 
on  it ;  the  easement  which  the  defendant  has  does  not  affect 
the  right  of  the  owner  of  the  land."  So,  also,  it  was  said  by 
the  lord  chancellor  in  the  case  of  Dyce  v.  Lady  James  Hay, 
that  "  neither  by  the  law  of  Scotland  nor  of  England  can 
there  be  a  prescriptive  right  in  the  nature  of  a  servitude  or 
easement  so  large  as  to  preclude  the  ordinary  uses  of  property 
by  the  owner  of  the  lands  affected."  * 

No  man  can  impose  a  new  restriction  or  burden  on  his 
Increase  of  ^eigbbor  by  his  own  act,  and  for  this  reason  an 
enjoyment    owner  of  an  easement  cannot,  by  altering  his  domi- 

by  altering  ,  .        .  , 

adominant  naut  tenement,  increase  his  right.'  On  this  ground 
it  was  determined  that  a  malt-house  which  had  stood 
for  thirty  or  forty  years,  was  entitled  to  have  sufficient  light 
to  its  ancient  wi-ndows  only  for  the  purpose  of  making  malt, 
and  that  the  right  could  not  be  increased  by  the  fact  of  the 
building  having  been  converted  into  a  workhouse.     In  an  ac- 

J  2  T.  R.  at  p.  95. 

*  1  Macq.  305.  The  principle  is  the  same  in  the  case  of  public  rights 
of  way.  Vestry  of  St.  Mary,  Newington,  v.  Jacobs,  L.  R.  7  Q.  B.  47; 
41  L.  J.  M.  C.  72. 

'  Alteration  of  a  dominant  tenement  will,  in  some  cases,  cause  a  total 
loss  of  an  easement,  or  a  suspension  of  the  right  till  the  dominant  tene- 
ment is  restored  to  its  original  condition.     See  post,  chapter  V. 


EASEMENTS  GENERALLY.  281 

tion  for  obstruction  of  ancient  light  by  the  erection  of  a  fence, 
the  question  for  the  jury  was  in  that  case  held  to  be  whether, 
if  the  builcling  had  still  remained  in  the  condition  of  a  malt- 
house,  a  proper  degree  of  light  for  the  purpose  of  making 
malt  was  prevented  entering  the  windows  by  reason  of  the 
fence."*  If  the  increased  amount  of  light  had  continued  to 
be  enjoyed  for  twenty  years,  a  new  and  increased  right  could 
doubtless  have  been  acquired.  If,  however,  it  is  manifest  that 
it  was  the  original  intention  that  the  easement  should  remain 
appurtenant  to  the  dominant  tenement,  whatever  its  condi- 
tion might  be  or  become,  and  even  though  the  burden  on  the 
servient  tenement  should  be  increased  by  alterations,  the  ease- 
ment will  become  increased  if  alterations  in  the  dominant  ten- 
ement require  such  increase." 

If  the  owner  of  an  easement  exceeds  his  rightful  enjoyment, 
or  does  anything  which  would  after  long  user  pro-  Right  to 
duce  an  increased  right,  the  servient  owner  may  in  excessi've 
all  cases  obstruct  or  prevent  the  excessive  enjoy-  "®'^^- 
ment,  or  the  user  of  the  thing  which  would  enable  the  dom- 
inant owner  after  a  time  to  claim  an  increased  right.^  Thus 
in  the  case  of  Greenslade  v.  Halliday,''  the  facts  were  that  the 
plaintiff,  who  was  owner  of  a  meadow  near  a  stream  which 
flowed  through  the  defendant's  land,  had  been  for  fifty  years 
in  the  habit  of  entering  her  land  and  penning  back  the  water 
of  the  stream  with  loose  stones,  in  order  to  divert  a  portion  of 
the  water  to  irrigate  his  meadow,  and  he  was  also  accustomed, 
when  necessary,  to  place  a  board  across  the  stream  for  the 
same  purpose,  supporting  it  by  means  of  the  loose  stones ;  on 
one  occasion  the  plaintiff  permanently  fixed  the  board  by 
means  of  two  hooked  stakes  driven  into  the  bed  of  the  stream, 
and  the  defendant,  conceiving  that  this  act  of  the  plaintiff, 

"•Martin  v.  Goble,  1  Camp.  320;  Lanfranchi  v.  Mackenzie,  L.  R.  4 
Eq.  421;  36  L.  J.  Ch.  518;  Wood  v.  Saunders,  44  L.  J.  Ch.  514;  L.  R. 
10  Ch.  582. 

"  United  Land  Co.  v.  Great  Eastern  Railway  Co.  L.  R.  10  Ch.  App. 
586;  44  L.  J.  Ch.  685. 

1  See  McMillan  v.  Cronin,  75  N.  Y.  474.     Post,  chapter  IV. 

o  6  Ring.  379;  8  L.J.  C.  P.  124. 


282  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

rendering  the  obstruction  permanent,  might  establish  for  hira 
a  greater  right  than  that  to  which  he  was  entitled,  reinoyed 
the  stakes  and  the  board,  telling  the  plaintiff  he  should  net 
exercise  the  right  until  it  was  ascertained  to  what  quantity  of 
water  he  was  entitled.  It  was  held  that  the  defendant  had 
done  more  than  she  was  entitled  to  do,  that  the  board  had 
been  improperly  fastened  down  with  stakes,  which  was  a  new 
mode  of  fastening  it,  and  that  she  might  lawfully  remove 
them,  but  that  she  had  no  right  to  remove  the  board.  Exces- 
sive user  can,  of  course,  only  be  obstructed  by  the  servient 
owner  on  his  own  land  ;  he  cannot  enter  the  dominant  ten- 
ement, or  do  anything  there  to  prevent  the  user,  for  by  so  do- 
ing he  would  be  committing  a  trespass,  and  if  he  has  no 
means  of  obstructing  the  excessive  user  without  committing  a 
trespass,  no  increased  right  can  be  acquired  by  prescription, 
as  no  presumption  of  a  grant  can  arise.  If,  therefore,  ancient 
windows  be  increased  in  size  or  number,  the  servient  owner 
may  build  on  his  own  land  to  obstruct  the  increased  portions 
or  the  new  windows,  but  he  cannot  touch  the  windows  them- 
selves, and  so  if  a  mill-owner  alters  his  mill  and  takes  more 
water  than  he  is  entitled  to  take,  the  servient  owner  cannot 
touch  the  mill,  but  he  must  sue  the  owner  for  wrongfully  di- 
verting the  water. 

There  are  some  cases  in  which  it  is  impossible  to  obstruct 
the  excessive  user  of  an  easement  without  also  obstructing  the 
rightful  enjoyment,  and  much  doubt  has  arisen  whether  the 
servient  owner  is  not  entitled,  in  such  an  event,  to  obstruct 
the  user,  both  rightful  and  wrongful,  altogether.  It  was  at 
first  supposed  that  the  law  would  in  all  cases  sanction  total 
obstruction,  but  it  has  ultimately  been  determined  that  in  the 
case  of  rights  to  light,  increasing  the  size  and  number  of  an- 
cient windows  does  not  justify  a  servient  owner  in  obstructing 
the  ancient  as  well  as  the  newly  acquired  light,  even  though 
it  is  impossible  to  obstruct  the  new  lights  alone.  This  subject 
will  be  more  fully  considered  hereafter.^ 

Before  leaving  the  subject  of  the  extent  of  easements  and 

P  See  post,  chapter  IV.     See  Cawkwell  i'.  Russell,  26  L.  J.  Exch.  34 
(not  elsewhere  reported). 


EASEMENTS  GENERALLY.  283 

natural  riglits,  some  notice  is  required  of  the  effect  on  an 

easement   of   an  assignment   of   the  dominant    ten-        . 

°  ,  Assign- 

ement ;  for  questions  are  not  at  all  unlikely  to  ment  of 
arise  on  this  subject.  There  can  be  no  doubt  that 
natural  rights,  which  are  by  law  annexed  to  the  ownership  of 
the  soil,  pass  to  a  grantee  or  assignee  of  a  dominant  tenement, 
although  they  are  not  expressly  mentioned  in  the  deed  of  con- 
veyance,^ and  if  land  is  let  to  a  tenant  he  will  become  entitled 
to  all  natural  rights  during  his  tenancy,  although  the  tenancy 
is  not  created  by  deed,  for  they  are  incident  to  the  possession 
of  the  land.  As  they  are  given  by  law  and  are  attached  to 
the  land  without  grant,  so  they  pass  with  the  land  without 
grant  into  whosoever  hands  it  comes.      ^ 

As  easements,  on  the  contrary,  can  be  created  and  granted 
only  by  deed  it  would  seem  that  they  cannot  be  assigned 
otherwise  than  by  deed,  and  there  appears  to  be  little  doubt 
that  this  as  a  general  principle  is  so ;  but  though  it  is  possible 
that  there  may  be  questions  on  this  subject,  they  would  seem 
to  be  likely  to  arise  only  in  cases  of  tenancies  ;  for  easements 
cannot  be  assigned  separately  from  their  dominant  tenements 
as  rights  in  gross,  and  to  convey  land  a  deed  is  always  re- 
quired, so  that  if  the  dominant  tenement  is  conveyed  by  deed, 
the  same  deed  will  operate  generally  as  an  assignment  of  the 
easement.  It  has  been  shown,  however,  that  when  a  dom- 
inant tenement  is  conveyed,  express  mention  in  the  deed  of 
conveyance  is  not  essential  to  transfer  the  easement,  for  ease- 
ments appurtenant  will  pass  on  conveyance  of  land  by  deed 
under  the  general  word  "  appurte^iances,''^  or  even  though 
appurtenances  be  not  mentioned.^  In  case  of  tenancies,  how- 
ever, the  question  is  not  at  all  unlikely  to  arise,  for  when  the 
dominant  tenement  is  let  to  a  tenant  without  deed,  say  for  a 
yearly  tenancy,  does  the  tenant  become  entitled  to  the  ease- 

3  Canham  v.  Fisk,  2  Cromp.  &  J.  126  ;  1  L.  J.  N.  S.  Exch.  61. 

1  A  right  of  easement  which  has  never  been  exercised  so  as  to  become 
actually  appurtenant  to  land  conveyed,  and  which  is  not  essential  to  its  use 
and  enjoyment,  will  not  pass  by  a  conveyance  of  the  land  merely,  "  and 
appurtenances,"  but  without  any  other  words  clearly  including  the  alleged 
easement.     The  Decorah  Woolen  Mill  Co.  v.  Greer,  49  Iowa,  490. 


284  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

ment  ?  There  is  some  doubt  on  the  point.  Skull  v.  Glenis- 
ter  *■  seems  to  be  an  authority  that  he  does  ;  but  the  decision 
in  that  case  mainly  turned  upon  a  different  point.  On  prin- 
ciple it  would  seem  that  a  tenant  of  the  dominant  tenement 
could  not  become  entitled  to  an  easement  unless  the  tenement 
were  leased  to  him  by  deed,  for  though  it  is  appurtenant 
to  the  dominant  tenement,  still  it  is  an  incorporeal  heredita- 
ment and  can  only  pass  by  grant.  Other  rights  analogous  to 
easements  have  been  held  incapable  of  demise  for  a  term  ex- 
cept by  deed  ;  *  and  the  only  question  is  whether  the  fact  that 
an  easement  is  a  right  appurtenant  to  land  which  can  be 
leased  for  short  periods  without  a  deed  makes  any  difference. 
During  the  argument  in  Mayfield  v.  Robinson,'  when  Wood 
V.  Leadbitter  was  mentioned,  it  was  remarked,  "  There  the 
question  was  whether  a  right  of  way  could  be  created  by  the 
unsealed  instrument.  Whether  a  similar  right  once  created 
may  be  demised  by  such  an  instrument  is  a  different  point." 
Coleridge,  J.,  replied,  "  Being  an  incorporeal  hereditament  it 
could  not."  The  opinion  of  the  Court  of  Exchequer  in  the 
case  of  Wood  v.  Leadbitter  "  was  also  very  express  upon  the 
point,  and  that  being  a  leading  case  respecting  incorporeal 
rights,  it  may  be  well  to  quote  the  words  of  the  court : 
"  That  no  incorporeal  inheritance  affecting  land  can  either  be 
created  or  transferred  otherwise  than  by  deed,  is  a  proposition 
so  well  established  that  it  would  be  mere  pedantry  to  cite  au- 
thorities in  its  support.  All  such  inheritances  are  said  em- 
phatically to  lie  in  grant  and  not  in  livery,  and  to  pass  by 
mere  delivering  of  the  deed.  In  all  the  authorities  and  text- 
books on  the  subject,  a  deed  is  always  stated  or  assumed  to  be 
indispensably  requisite.  And  although  the  older  authorities 
speak  of  incorporeal  inheritances,  yet  there  is  no  doubt  but 
that  the  principle  does  not  depend  on  the  quality  of  the  inter- 
est granted  or  transferred,  but  on  the  nature  of  the  subject- 

^  16  C.  B.  N.  S.  81. 

'  Duke  of  Somerset  v.  Fogwell,  5  B.  &  C.  875.     See  the  judgment. 
*  7  Q.  B.  at  p.  489. 

«  13  M.  &  W.   838;  14  L.  J.  Exch.   161.     See,  however,  Mitcalfe  v. 
Westaway,  17  C.  B.  N.  S.  658;  34  L.  J.  C.  P.  113. 


EASEMENTS  GENERALLY.  285 

matter :  a  right  of  common,  for  instance,  which  is  a  profit  d 
prendre,  or  a  right  of  way,  which  is  an  easement  or  right  in 
nature  of  an  easement  can  no  more  be  granted  or  conveyed  for 
life  or  for  years  ivithout  a  deed,  than  in  fee  simple." 

A  matter  of  considerable  importance  in  connection  with 
easements,  and  which  being  somewhat  akin  to  the  Repair  of 
mode  of  user  of  these  rights  may  be  not  improperly  ofYn"ease- 
noticed  in  this  place,  is  the  right  of  the  dominant  ™ent. 
owner  to  repair  the  servient  tenement,  or  the  subject  of  the 
easement,  whatever  it  may  be,  in  the  servient  tenement.  It 
is  clear  that  if  the  dominant  owner  has  no  right  to  repair  the 
servient  tenement  or  to  enter  that  tenement  for  the  purpose 
of  repairing  the  subject  of  an  easement,  and  the  servient 
owner  will  not  do  it,  he  must  either  commit  a  trespass  or  lose 
his  easement.  There  is  no  doubt  the  law  is  that  the  domi- 
nant owner  may  enter  the  servient  tenement  and  do  the  nec- 
essary repairs,  and  that  the  servient  owner  is  under  no  obli- 
gation to  do  them.i  This  has  been  understood  to  be  the  law 
ever  since  the  old  case  of  Pomfret  v.  Ricroft,"  when  Twysden, 
J.,  whose  opinion  was  upheld  in  the  Exchequer  Chamber,  said 
that  "  when  the  use  of  a  thing  is  granted,  everything  is 
granted  by  which  the  grantee  may  have  and'  enjoy  such  use, 
as  if  a  man  gives  me  a  license  to  lay  pipes  of  lead  in  his  land 
to  convey  water  to  my  cistei'n,  I  may  afterwards  enter  and 
dig  the  land  to  mend  the  pipes,  though  the  soil  belongs  to  an- 
other and  not  to  me."  The  same  principle  has  been  followed 
in  more  recent  times  both  in  cases  of  rights  of  way,  public 
and  private,  and  of  support."' 

1  See  Prescott  v.  White,  21  Pick.  342;  Prescott  v.  Williams,  5  Met. 
435;  Doane  v.  Badger,  12  Mass.  69;  Jones  v.  Percival,  5  Pick.  487; 
McMillan  v.  Cronin,  75  N.  Y.  474;  Pico  v.  Colimas,  32  Cal.  578. 

«  1  Wms.  Saund.  at  p.  565,  ed.  1871. 

^  Hamilton  v.  Vestry  of  St.  George,  Hanover  Square,  L.  R.  9  Q.  B. 
42;  43  L.  J.  M.  C.  41 ;  Gerrard  v.  Cooke,  2  B.  &  P.  N.  C.  109  ;  Colebeck 
V.  Girdlers'  Co,  1  Q.  B.  D.  234;  45  L.  J.  Q.  B.  225. 


286      EXTENT  AND  MODE  OF  USER  OF  EASEMENTS. 

Sect.  2.  —  On  the  Uxtent  and  Mode  of  User  of  Particular 

Easements. 

The  foregoing  remarks  relative  to  the  Extent  and  Mode  of 
User  of  Easements  apply  to  easements  and  natural  rights  of 
all  kinds  ;  but  there  are  principles  of  law  which  relate  exclu- 
sively to  particular  easements,  and  which,  from  their  nature, 
are  inapplicable  to  easements  generally.  These  it  is  purposed 
to  consider  in  the  present  section. 


It  has  been  shown  that  every  landowner  has  a  natural  right 
Purity  of  to  purity  of  air  —  that  is,  that  the  air  which  natu- 
*''■•  rally  flows  to  his  land  shall  not  be  rendered  impure 

as  it  passes  over  the  soil  of  other  persons.  When  this  subject 
was  considered  the  extent  and  limit  of  the  right  were  necessa- 
rily noticed  at  the  same  time,  and  there  remains  nothing  to 
add  in  this  place :  it  was  then  shown  that  the  right  is  not 
that  the  air  shall  always  be  suffered  to  remain  in  an  abso- 
lutely pure  state,  but  that  the  air  shall  not  be  rendered,  to  an 
important  degree,  less  compatible  with  the  physical  comfort 
of  human  existence.  It  is  obvious  that  a  right  that  air  shall 
in  no  degree  be  polluted,  would  necessarily  put  an  end  to 
many  of  the  ordinary  occupations  of  mankind,  occupations 
which  it  is  essential  should  be  carried  on  for  the  common  wel- 
fare of  man  ;  each  individual  is,  consequently,  bound  by  law 
to  submit  to  a  certain  amount  of  inconvenience,  that  the  gen- 
eral good  of  the  public  may  be  secured.^ 

LIGHT. 

The  extent  of  jjrescriptive  rights  is  always  more  or  less  dif- 
Extent  of  ficult  to  determine,  for  it  has  to  be  determined  by 
prescnp-       ^j^    accustomed  user,  and  difficulty  sometimes  arises 

live  rijiats  '  -^ 

to  light.  from  the  circumstances  that  the  user  has  varied, 
more  or  less,  during  the  prescriptive  period,  and  that  the  ex- 
tent and  mode  of  the  user  may  not  have  been  altogether 
known  to  the  servient  owner ;  in  the  case  of  light  the  servi- 
'^  See  ante,  chapter  I.  p.  20. 


LIGHT.  287 

ent  owner  may  have  known  that  light  passing  over  his  soil  en- 
tered a  particular  window,  but  he  may  have  been  totally  ig- 
norant of  the  purpose  for  which  the  light  was  used  when  it 
entered  the  house,  and  the  amount  of  light  which  is  sufficient 
for  one  purpose  may  be  wholly  inadequate  for  another. 

The  general  rule  which  may  be  deduced  from  the  reported 
cases  seems  to  be,  that  a  prescriptive  right  to  light  is  a  right 
to  that  amount  of  light  which  has  been  accustomed  to  enter  a 
window  during  the  whole  of  the  prescriptive  period,  irrespec- 
tively of  the  purposes  for  which  it  may  actually  have  been 
used.     In  the  case  of  Yates  v.  Jack,^'  which  was  a  suit  for  an 

y  L.  R.  1  Ch.  App.  295;  35  L.  J.  Ch.  539.  It  is  very  difficult  to  state 
in  precise  terms  the  actual  amount  of  light  to  which  a  right  to  light  enti- 
tles an  owner  of  a  building,  although  there  are  various  cases  in  which  it 
has  been  attempted.  Each  case  must  undoubtedly  depend  to  some  extent 
upon  its  own  facts,  and  no  doubt  before  the  court  would  interfere  to  pre- 
vent an  obstruction,  the  nature  of  the  building  for  which  the  right  is 
claimed,  and  the  purpose  for  which  it  is  used,  would  be  taken  into  consid- 
eration. The  right  may  strictly  be,  as  stated  in  the  text,  to  have  the 
same  amount  of  light  which  has  been  accustomed  to  enter  a  window,  re- 
gardless of  the  purpose  for  which  it  has  been  used,  but  the  court  seldom 
interferes  unless  the  darkening  of  the  windows  has  been  such  as  to  render 
the  house  substantially  less  comfortable  or  less  suitable  for  the  purpose 
for  which  it  is  used.  In  the  case  of  Kelk  v.  Pearson  (L.  R.  6  Ch.  Ajip. 
809),  the  opinion  of  James,  L.  J.,  indicated  this.  He  said:  "On  the 
part  of  the  plaintitl'  it  was  argued  before  us  that  this  was  an  absolute 
right,  —  that  now  under  the  statute  2  &  3  Wm.  IV.  c.  71,  he  had  an  abso- 
lute and  indefeasible  right  by  way  of  property  to  the  whole  amount  of 
light  and  air  which  came  through  the  windows  into  his  house  ;  and  that 
he  could  maintain  an  action  at  law  or  a  suit  in  equity  upon  that  absolute 
legal  right;  and  the  only  question  as  to  the  effect  or  extent  of  his  right 
would  be  with  regard  to  the  discretion  of  this  court  in  considering  whether 
it  was  a  case  for  damages  or  to  be  interfered  with  by  way  of  injunction. 
Now,  I  am  of  opinion  that  the  statute  has  in  no  degree  whatever  altered 
the  preexisting  law  as  to  the  nature  and  extent  of  this  right.  The  nature 
and  extent  of  the  right  before  the  statute  was  to  have  that  amount  of  light 
through  the  windows  of  a  house  which  was  sufficient  according  to  the  or- 
dinary notions  of  mankind,  for  the  comfortable  use  and  enjoyment  of  that 
house  as  a  dwelling-house,  if  it  were  a  dwelling-house;  or  for  the  bene- 
ficial use  and  occupation  of  the  liouse  if  it  were  a  warehouse,  a  shop,  or 
other  place  of  business.  That  was  the  extent  of  the  easement,  —  a  right 
to  prevent  your  neighbor  from  building  upon  his  land  so  as  to  obstruct  the 


288  EXTENT   AND   MODE   OF  USER   OF   EASEMENTS. 

injunction  to  restrain  obstruction  of  light  by  raising  the  height 
of  buildings,  the  plaintiffs  gave  evidence  to  prove  that  their 
warehouse  would  be  materially  darkened,  and  that  they  would 
not  be  able  to  carry  on  their  business  so  well,  especially  when 
judging  samples,  as  they  had  been  accustomed  :  the  defend- 
ant, on  the  other  hand,  gave  evidence  to  prove  that  no  mate- 
rial injury  would  be  done  to  the  plaintiffs,  and,  particularly, 
that  there  would  be  ample  light  for  the  business  carried  on 
by  them  ;  in  fact,  that  the  screening  off  of  the  direct  rays  of 
the  sun  would  be  a  positive  advantage.  Lord  Cranworth,  L. 
C,  in  his  judgment,  said  :  "  On  behalf  of  the  defendant  there 
are  a  great  number  of  witnesses  merchants  and  vendors,  en- 
gaged in  business  similar  to  that  of  the  plaintiffs,  who  give  it 
as  their  decided  opinion  that  even  after  the  erection  of  the 
proposed  new  buildings  there  will  be  ample  light  for  enabling 
the  plaintiffs  to  conduct  their  business  as  well  as  they  did  for- 
merly. Some  of  them  go  so  far  as  to  say  that,  for  the  pur- 
pose of  sampling,  a  strong  direct  light  is  not  desirable,  and 
that  the  erection  of  the  new  building,  by  screening  the  sun's 
rays,  will  improve  the  quality  of  the  light  admitted  to  the 
plaintiffs'  windows.  The  evidence  satisfies  me  that,  for  some 
purposes  of  their  trade,  it  is  necessary  at  times  to  exclude  the 
direct  rays  of  the  sun,  and  that,  in  what  is  called  sampling,  a 
subdued  light  may  be  better  than  direct  sunlight.  But  this 
is  not  the  question.  It  is  comparatively  an  easy  thing  to 
shade  off  a  too  powerful  glare  of  sunshine,  but  no  adequate 
substitute  can  be  found  for  a  deficient  supply  of  daylight ;  and 
an  attentive  consideration  of  the  evidence  of  the  trade  wit- 
nesses on  the  one  side  and  on  the  other  has  led  me  to  the  con- 
clusion, as  did  the  evidence  of  the  architects,  that  the  erection 
of  the  new  buildings  will  materially  interfere  with  the  quan- 
tity of  light  necessary  or  desirable  for  the  plaintiffs  in  the 

access  of  sufficient  light  and  air  to  such  an  extent  as  to  render  the  house 
substantially  less  comfortable  and  enjoyable."  This  expression  of  opinion 
that  the  Prescription  Act  had  not  altered  the  nature  of  the  right  or  the 
principle  on  which  it  is  to  be  determined  whether  the  right  has  been  in- 
fringed, was  subsequently  approved  by  Lord  Selborne,  L.  C,  in  the  case 
of  The  City  of  London  Brewery  Co.  v.  Tennant,  L.  R.  9  Ch.  App.  212. 


LIGHT.  289 

conduct  of  their  business.  I  desire,  however,  not  to  be  under- 
stood as  saying,  that  the  plaintiffs  would  have  no  right  to  an 
injunction  unless  the  obstruction  of  light  were  such  as  to  be 
injurious  to  them  in  the  trade  in  which  they  are  now  engaged. 
The  right  conferred  or  recognized  by  the  statute  2  &  3  Wm. 
IV.  c.  71,  is  an  absolute  indefeasible  right  to  the  enjoyment 
of  the  light  without  reference  to  the  purpose  for  which  it  has 
been  used.  Therefore,  even  if  the  evidence  satisfied  me, 
which  it  does  not,  that  for  the  purpose  of  their  present  busi- 
ness a  strong  light  is  not  necessary,  and  that  the  plaintiffs 
will  still  have  sufficient  light  remaining,  I  should  not  think 
the  defendant  had  established  his  defence  unless  he  had 
shown  that,  for  whatever  purpose  the  plaintiff's  might  wish  to 
enjoy  the  light,  there  would  be  no  material  interference  with 
it."  If  light  has  been  used  for  an  extraordinary  and  particu- 
lar purpose  for  twenty  years,  and  the  person  interested  in  ob- 
structing the  right  has  been  fully  aware  of  the  purpose  for 
which  the  light  was  used,  a  right  to  an  extraordinary^  amount 
of  light  for  that  purpose  may,  possibly,  be  acquired  by  pre- 
scription.' 

Questions  as  to  the  extent  of  rights  to  light  which  have 
been  acquired  by  grant  have  been  of  rare  occurrence, 
and  there  is  but  little  authority  on  the  subject ;  but   rights  to 
it  is  not  very  easy  to  see  why  such  questions  should    qSired  by 
not  be  as  frequent  as  those  which  relate  to  prescrip-  ^raut. 
tive  rights,  unless  it  is  that  rights  to  light  are  less  frequently 
acquired  by  grant  than  by  prescription.     But,  nevertheless, 
such  questions  might  at  any  time  arise,  and  Mellish,  L.  J., 
expressed  an  opinion  that  the  nature  and  extent  of  a  right  to 
light  acquired  by  grant,  express  or  implied,  is  precisely  the 
same  as  if  the  right  were  acquired  by  prescription."     This  no 
doubt  is  so,  but  to  ascertain  the  extent  of  the  right  a  different 
measure  must  necessarily  be  used  in  the  two  cases.      The 
extent  of  a  prescriptive  right  must  be  measured  by  the  ac- 
customed enjoyment,  that  is,  the  right  is  to  have  the  same 

«  Lanfranchi  v.  Mackenzie,  L.  R.  4  Eq.  421;  36  L.J.  Ch.  518.     See 
however,  the  previous  remarks  on  this  case,  ante,  chapter  II.  p.  217. 
"  Kelk  V.  Pearson,  L.  R.  6  Ch.  App.  at  p.  813. 
19 


290  EXTENT   AND   MODE   OF  USER   OF   EASEMENTS. 

amount  of  light  which  has  been  in  the  habit  of  entering 
a  window  during  the  twenty  years'  prescriptive  enjoyment, 
regardless,  in  ordinary  cases,  of  the  use  to  which  the  light  has 
been  put ;  but  in  a  case  where  the  right  has  been  acquired  by 
grant,  —  for  instance,  when  a  man  has  sold  a  house,  reserving 
the  adjoining  land  over  which  the  light  passes  to  the  windows 
of  the  house,  when  there  would  be  an  implied  grant  of  right 
to  light,  — it  is  obvious  this  measure  cannot  be  used,  for  the 
house  may  not  have  been  built  for  twenty  years.  What  then 
in  such  a  case  is  the  measure  of  the  right  ?  It  is  presumed  it 
must  be  the  amount  of  light  that  entered  the  windows  at  the 
time  the  grant  was  made,  or  is  presumed  to  have  been  made, 
that  is,  in  the  instance  given  above,  at  the  time  the  owner  of 
the  house  and  the  adjoining  land  sold  the  former,  reserving 
the  latter. 

A  right  to  light  cannot  be  suddenly  enlarged  by  ancient 
Enlarging  wiudows  being  increased  in  size  or  number,  for  no 
Increattixr'^    man  Can  by  any  act  of  his  own  impose  a  new  bur- 

thenum-  ^JgJ^  q^^  ]^jg  neighbor.  Such  an  alteration  may  confer 
ber,  of  ^  ...  » 

windows,      an  increased  or  additional  right  after  the    lapse  of 

twenty  years,  but  this  is  in  reality  not  an  increase  of  the  orig- 
inal, but  an  acquisition  of  a  new  right.*  The  opening  of  new 
or  enlargement  of  ancient  windows  is,  however,  no  wrongful 
act  on  the  part  of  the  owner  of  a  house,  and  it  does  not  in  any 
way  affect  his  original  right  to  light ;  ^  but  the  servient  owner 
may,  in  the  exercise  of  his  ordinary  right  to  build  on  his  own 
land,  erect  something  to  block  up  the  new  windows  if  he  can 
do  so  without  interfering  with  the  ancient  lights.''     That  he 

^  Cooper  V.  Hubbuck,  30  Beav.  160;  31  L.  J.  Ch.  123  ;  Martin  v.  Go- 
ble,  1  Camp.  320;  Lanfranchi  v.  Mackenzie,  L,  R.  4  Eq.  421;  36  L.  J. 
Ch.  518. 

^  Thus,  in  the  very  recent  case  of  Barnes  v.  Loach,  4  Q.  B.  D.  494 
(1879),  the  owner  of  cottages,  in  the  walls  of  which  were  certain  windows, 
erected  on  his  own  land  a  wall  outside  of  the  original  wall,  with  another 
and  larger  window  in  it,  and  at  a  different  angle,  but  the  old  wall  and 
window  .still  remained  as  before  ;  and  it  was  held  that  the  right  of  access 
of  light  to  the  old  window  was  not  thereby  affected. 

<=  Cooper  V.  Ilubbuck,  30  Beav.  161 ;  31  L.  J.  Ch.  123;  TapUng  v.  Jones, 
11  H.  L.  C.  290;  34  L.  J.  C.  P.  342. 


LIGHT.  291 

may  not,  while  blocking  up  the  new  windows,  obstruct  the 
ancient  lights,  even  though  it  is  impossible  to  block  up  the 
one  without  interfering  with  the  other,  will  be  shown  here- 
after.'* 

Although  no  new  or  additional  right  to  light  can  be  ac- 
quired by  increasing  the  size  or  number  of  windows,    ,,    . 

\  .  ,  Altering 

the  owner  of  ancient  windows  may  alter  and  im-   and  im- 

,1     •  T^-         •  11  •  -I         proving  the 

prove  their  condition  in  any  way  he  pleases  in  order  condition 
to  make  them  admit  a  greater  amount  of  light  °  ^'"  *^^^' 
through  the  ancient  apertures,  and  he  will  be  entitled  to  the 
light  so  acquired.  It  was  held  in  an  old  case  at  nisi  prius 
that  if  partial  light  only  has  been  accustomed  to  enter  ancient 
windows  by  reason  of  blinds  sloping  upwards  in  front  of  the 
windows,  that  the  measure  of  the  right  to  light  is  the  quantity 
of  light  which  has  been  accustomed  to  enter  the  windows 
when  so  blinded,  and  that  on  removal  of  the  blinds  the  ser- 
vient owner  would  be  justified  in  obstructing  the  additional 
amount  of  light  thereby  acquired ;  ^  but  the  more  modern 
case  of  Turner  v.  Spooner-''  has  established  a  different  rule. 
In  that  case  the  plaintiff  was  possessed  of  two  ancient  win- 
dows, one  of  which  had  always  been  painted  white  on  the  in- 
side, and  was  protected  with  iron  bars,  and  both  the  windows 
were  made  with  heavy  frames  and  small  casements  in  leaden 
lattices,  and  they  only  opened  partially.  The  plaintiff,  to 
improve  his  windows,  removed  the  heavy  frames  and  case- 
ments, and  inserted  plate  glass  in  light  frames,  making  the 
windows  to  open  wide.  The  defendants  thereupon  erected  a 
wooden  frame  in  their  yard  within  a  few  inches  of  the  ancient 
lights,  resembling  windows,  and  glazed  with  opaque  dark-col- 
ored glass,  and  thereby  prevented  the  additional  light  which 
had  been  acquired  entering  the  windows.  A  bill  was  filed  by 
the  plaintiff  to  restrain  the  erection  of  the  glazed  frame. 
The  defendants  contended  that  they  were  entitled  to  cut  down 
the  amount  of  light  enjoyed  through  the  altered  windows  to 
the  amount  admitted  through  the  old  casements ;  but  the  vice 

'^  See  post,  chapter  IV. 

«  Cotterell  v.  Griffiths,  4  Esp.  69. 

/  1  Dr.  &  Sm.  467;  30  L.  J.  Ch.  801. 


292      EXTENT  AND  MODE  OF  USER  OF  EASEMENTS. 

chancellor  would  not  agree  to  that  proposition,  for,  said  he, 
if  a  person  possesses  ancient  lights,  and  without  altering  them 
can  acquire  an  increased  degree  of  light  and  air,  he  is  entitled 
to  such  acquirement,  without  giving  a  right  to  the  occupier  of 
the  servient  tenement  to  say  that  that  is  a  new  easement ;  and 
it  appeared  to  him  that  with  respect  to  the  alteration  of  the 
wood  or  framework,  or  the  mode  of  glazing,  or  the  thickness  of 
the  bars,  as  distinguished  from  the  aperture  itself,  it  was  com- 
petent for  the  plaintiff  to  make  any  such  alterations  without 
its  being  said  that  he  was  doing  that  which  might  result  in 
the  acquisition  of  a  new  easement. 

The  fact  that  in  America  a  right  to  light  is  not  acquired 
either  by  prescription  or  by  implied  grant,  as  already  shown,^ 
and  that  rights  of  light  are  seldom  expressly  granted  in  our 
conveyances,  renders  any  further  examination  of  this  partic- 
ular section  unimportant  to  the  American  reader. 

The  case  of  Janes  v.  Jenkins  ^  does  fully  adopt  the  English 
rule ;  but  the  deed  of  the  land  conveyed  in  that  case  also  in- 
cluded "  all  privileges,  appurtenances,  and  advantages  to  the 
same  belonging,  or  in  any  wise  appertaining." 

SUPPORT. 

But  few  remarks  are  required  relative  to  the  extent  of  the 

Natural        natural  right  to  support,  which  has  been  explained 

I!l'i^„!.?.,«  to  be  the  right  to  which  landowners  are  by  law  en- 
support  un-  o  J 

limited.  titled  that  the  use  and  enjoyment  of  their  land  in 
its  natural  condition  shall  not  be  disturbed  by  removal  of  the 
adjacent  and  subjacent  means  of  support.  But  it  should  not 
be  forgotten  that  this  natural  right  of  support  from  a  neigh- 
bor's land  is  limited  to  one's  own  land^  and  does  not  extend 
to  any  buildings  or  improvements,  such  as  fences,  trees,  or 
shrubbery  which  he  has  placed  upon  his  land,  and  conse- 
quently he  has  no  remedy  for  the  loss  of  such  improvements 
if  his  laud  should  subside  through  an  adjoining  owner's  exca- 
vations, which  were  made  without  negligence  on  his  part.^ 

1  Ante,  p.  202. 

-  34  Md.  1  (1870). 

2  See  the  interesting  case  of  Gilmore  v.  DriscoU,  122  Mass.  199,  in  which 


SUPPORT.  293 

This  right  is  absolute  and  unlimited,  and  if  the  means  of  sup- 
port is  removed,  and  no  other  support  supplied,  whereby  the 
land  is  made  to  sink,  the  person  removing  the  same  is  respon- 
sible for  damage  caused  ;  and  this  is  the  case  even  though  the 
removal  was  effected  with  the  utmost  care,  and  although  min- 
erals have  been  excavated  according  to  the  custom  of  the 
country  where  mines  are  situate.  The  subject  was  fully  ex- 
amined and  discussed  in  the  case  of  Humphries  v.  Brogden,^ 
in  which,  in  addition  to  laying  down  the  above-mentioned 
rule  of  law,  the  court  said:  "  We  likewise  think  that  the  rule 
giving  the  right  of  support  to  the  surface  upon  the  minerals 
in  the  absence  of  any  express  grant,  reservation  or  covenant, 
must  be  laid  down  generally,  without  reference  to  the  nature 
of  the  strata  or  the  difficulty  of  propping  up  the  surface,  or 
the  comparative  value  of  the  surface  and  the  minerals.  We 
are  not  aware  of  any  principle  upon  which  qualifications  could 
be  added  to  the  rule,  and  the  attempt  to  introduce  them 
would  lead  to  uncertainty  and  litigation."  .  .  .  .  "  Something 
has  been  said  of  a  right  of  reasonable  support  for  the  surface, 
but  we  cannot  measure  out  degrees  to  which  the  right  may 
extend,  and  the  only  reasonable  support  is  that  which  will 
support  the  surface  from  subsidence  and  keep  it  securely  at 
its  ancient  and  natural  level."  These  principles  being  estab- 
lished as  law,  an  important  question  arises  in  cases  where  the 
soil  is  of  such  a  nature  that  it  is  impossible  to  excavate  any 
of  the  minerals  without  causing  a  subsidence  of  the  surface. 
When  the  soil  is  of  that  nature  and  the  surface  belongs  to  one 
person  and  the  subjacent  minerals  to  another,  whose  inter- 
est is  to  be  sacrificed  ?  Is  the  mine-owner  to  forbear  excavat- 
ing his  minerals,  or  must  the  surface-owner  submit  to  unavoid- 
able damage  ?  It  has  been  held  that  in  such  an  event  the 
mine-owner  must  refrain  from  excavating  any  of  his  minerals, 

a  masterly  judgment  was  given  by  Gray,  C.  J.  See  ante,  p.  38;  and  j^ost, 
chapter  IV.  title  Support. 

ff  12  Q.  B.  739  ;  20  L.  J.  Q.  B.  10;  Rowbotham  v.  Wilson,  6  E.  &  B. 
593;  25  L.  J.  Q.  B.  362  ;  in  House  of  Lords,  8  H.  L.  C.  348;  30  L.  J. 
Q.  B.  49. 


29-4  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

and  that  lie  is  not  in  any  case,  except  by  special  agreement, 
justified  in  causing  the  surface-owner  any  damage.'' 

The  strict  legal  right  to  unlimited  support  may,  of  course, 
Natural  be  modified,  as  it  frequently  is,  by  act  of  parliament, 
Bifpport  or  by  'private  agreement.*  A  grant  of  land,  how- 
modified  ever,  with  a  reservation  of  the  subiacent  mines,  or 
by  agree-  .  »     ,  .  .  , 

ment.  with  a  reservation  of  the  mines  with  power  for  the 

owner  to  dig  and  get  the  minerals,  paying  for  all  damage 
caused  by  the  digging,  does  not  generally  deprive  the  surface- 
owner  of  his  right  to  support,^  but  whether  he  is  so  deprived 
or  not  depends  in  each  case  upon  the  terms  of  the  grant.-' 
And  the  same  is  true  as  to  lateral  support.  Thus,  if  land 
be  sold  to  a  railroad  company  expressly  "  for  materials  "  for 
building  their  road,  it  has  been  thought  that  an  implied  right 
to  excavate  exists  in  the  grantee,  and  the  company  is  not  lia- 
ble to  the  grantor  for  want  of  suppoi't  to  his  other  adjacent 
land.2 

If  the  natural  right  to  support  for  land  is  limited  by  act 
of  parliament  or  otherwise,  and  the  owner  of  subia- 
support  for  cent  mmes  is  entitled  to  excavate  and  cause  subsi- 
°  '  dence  of  the  surface,  a  similarly  limited  right  to  sup- 
port can  alone  be  acquired  by  prescription  for  houses  erected 
on  the  surface. 

In  speaking  of  easements  generally,  it  was  shown  that  the 
Obligation  dominant  owner  has  a  right  to  enter  the  servient 
to  repair  a    tenement  for  the  purpose  of  doing  any  repairs  either 

*  Wakefield  v.  The  Duke  of  Buccleuch,  L.  R.  4  Eq.  613;  36  L.  J.  Ch. 
763. 

»■  Smith  V.  Darby,  L.  R.  7  Q.  B.  716;  42  L.  J.  Q.  B.  140;  Eadon  v.  Jeff- 
cock,  L.  R.  7  i:xch.  379;  42  L.  J.  Exch.  36;  Aspden  v.  Seddon,  L.  R. 
10  Ch.  App.  394;  44  L.  J.  Ch.  359. 

^  See  ante;  Marvin  v.  Brewster  Iron  Min.  Co,  55  N.  Y.  538;  Ryck- 
man  v.  Gillis,  57  lb.  68. 

J  Smart  v.  Morton,  5  E.  &  B.  30  ;  24  L.  J.  Q.  B.  261 ;  Harris  v.  Ryding, 
5  M.  &  W.  60;  8  L.  J.  N.  S.  Exch.  181;  Roberts  v.  Haines,  6  E.  &  B. 
643;  25  L.  J.  Q.  B.  353;  in  Exchequer  Chamber,  7  E.  &  B.  625;  27  L.  J. 
Exch.  49;  Aspden  v.  Seddon,  1  Exch.  D.  496. 

2  Ludlow  V.  Hudson  River  Railroad  Co.  4  Hun,  239;  6  Lans.  128. 

*  Rowbotham  v.  Wilson,  6  E.  &  B.  593;  25  L.  J.  Q.  B.  362. 


SUPPORT.  295 

to  it  or  to  the  subject  of  the  easement  therein  that  supporting 
may  be  required  for  the  maintenance  of  his  enjoy-  "'  '"^" 
ment.  It  is  unnecessary  in  this  place  again  to  discuss  this 
subject  at  length,  but  it  is  to  be  remarked  that  the  question  of 
the  right  lately  arose  with  reference  to  the  easement  of  sup- 
port for  one  building  from  another.  The  question  in  the  case 
had  reference  to  Vi.  party  wall,  and  it  was  argued  that,  under 
the  circumstances  of  the  case,  a  covenant  to  repair  the  wall 
by  the  grantor  of  the  lease  of  the  dominant  tenement  must  be 
implied  ;  the  decision  of  the  court,  however,  was  against  any 
implication  of  such  a  covenant,  and  it  was  said  that  it  might 
be  open  to  doubt  whether  the  support  of  the  plaintiff's  house 
by  the  party  wall  was,  strictly  speaking,  in  the  nature  of  an 
easement  or  not,  but  assuming  that  the  right  of  support  in 
that  case  was  in  the  nature  of  an  easement  founded  on  im- 
plied grant,  it  was  well  established  that  there  is  no  obligation 
to  repair  on  the  part  of  the  owner  of  the  servient  tenement, 
but  the  owner  of  the  dominant  tenement  must  repair,  and  he 
may  enter  on  the  land  of  the  owner  of  the  servient  tenement 
for  that  purpose.' 

And  this  right  to  enter  and  repair  extends  also,  if  need  be, 
to  taking  down  the  whole  party  wall,  and  rebuilding  the  same, 
as  before,  without  being  liable  to  the  other  for  any  temporary 
loss  of  the  use  of  the  servient  tenement,  while  such  repairs 
are  going  on.^ 

2  Colebeck  v.  Girdlers  Co.  1  Q.  B.  D.  234  ;  45  L.  J.  Q.  B.  225.  It  was 
assumed  in  the  remarks  of  court  above  noticed  that  there  was  a  right  to 
support  for  the  plaintiff's  house  by  the  wall;  but  it  must  be  remembered 
that  it  has  been  held  that  no  right  to  support  for  one  building  from  an- 
other can  be  acquired  by  prescription.  (^Ante,  chapter  II.  sec.  2,  Sup- 
port.) 

1  Partridge  v.  Gilbert,  3  Duer,  184;  15  N.  Y.  601.  And  see  Campbell  v. 
Mesier,  4  John.  Ch.  334.  The  full  discussion  of  the  law  of  party  walls  is 
foreign  to  the  scope  of  this  treatise;  but  the  learned  reader  is  referred  to 
a  valuable  note  to  Block  v.  Isham,  16  Am.  Law  Reg.  10,  by  Hon.  James  T. 
Mitchell,  of  Philadelphia. 


296  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 


WATER. 

The  natural  rights  which  riparian  proprietors  have  in  the 
Limit  of  water  of  natural  streams  are  to  a  certain  extent  con- 
"j'^JiJ^^^Jq  flicting  in  their  character,  for  while  all  have  a  right 
tiio  use  and   |;q  ^\^q  uninterrupted  flow  of  that  water,  all  have  a 

to  the  now       ^  ^ 

of  water,  right  to  use  and  consume  it  as  it  flows  past  their 
land,  and  the  result  is  that  these  rights  are  limited  by  each 
other  ;  the  right  to  the  uninterrupted  flow  of  water  is  not  a 
right  that  the  water  shall  be  absolutely  and  wholly  uninter- 
rupted, but  that  the  water  shall  not  be  materially  diminished 
in  quantity  by  user  by  other  riparian  proprietors  ;  and,  in  a 
similar  manner,  the  right  of  the  latter  is  not  that  they  may 
use  the  whole  or  even  a  considerable  portion  of  the  water, 
but  onl}^  that  they  may  make  a  reasonable  use  of  it  on  their 
riparian  land,  having  due  regard  to  the  interests  of  other  per- 
sons who  have  land  lower  down  the  stream."* 

And  conversely  a  person  has  not  a  natural  right  to  convey 
into  a  stream  an  unreasonable  amount  of  water,  —  ten  million 
gallons  every  day,  —  and  a  riparian  proprietor  below  may 
have  an  injunction  against  such  a  use  of  the  stream. ^ 

The  right  to  use  the  water  of  streams  is  generally  said  to 
Use  of  be  ^i  right  to  a  reasonable  use  of  the  water,  for  it  is 
water.  impossible  to  lay  down  any  hard  line  to  define  the 

extent  of  this  right,  but  the  very  use  of  this  word  "  reason- 
able "  has  given  rise  to  questions  as  to  what  amount  of  user 
can  be  so  described.  In  the  case  of  The  Medway  Navigation 
Company  v.  The  Earl  of  Romney,"  it  was  held  that  the  ab- 
straction of  water  from  a  flowing  stream  to  supply  a  gaol  or 
lunatic  asylum  were  purposes  more  extensive  than  those  to 
which  a  riparian  owner  has  a  right  to  apply  the  water  ;  and  in 
the  case  of  The  Wilts  and  Berks  Canal  Navigation  Company 
V.  The  Swindon  Waterworks  Company,*'  James,  L.  J.,  in  giv- 

^  Embrey  v.  Owen,  6  Exch.  353;  20  L.  J.  Exch.  212;  Wright  v.  How- 
ard, 1  Sim.  &  St.  190;  1  L.  J.  Ch.  94. 

1  Mayor  of  Baltimore  v.  Appold,  42  Md.  442. 

»  9  C.  B.  N.  S.  575;  30  L.  J.  C.  P.  236. 

^  L.  R.  9  Ch.  App.  451;  43  L.  J.  Ch.  393  ;  in  H.  L.  L.  R.  7  H.  L.  697; 
45  L.  J.  Ch.  638. 


WATER.  297 

ing  judgment,  said  that  the  vise  and  diversion  of  a  stream  to 
supply  a  town  with  water  is  not  a  purpose  for  which  a  ripa- 
rian proprietor  is  entitled  to  take  the  water  from  its  natural 
course.  On  the  other  hand,  Parke,  B.,  observed,  in  the  case 
of  Embrey  v.  Owen,  one's  common  sense  would  be  shocked  by 
supposing  that  a  riparian  owner  could  not  dip  a  watering  pot 
into  a  stream  in  order  to  water  his  garden,  or  allow  his  family 
or  cattle  to  drink  ;  and,  he  added,  that  it  is  entirely  a  question 
of  degree,  and  that  it  is  very  difficult,  and  indeed  impossible, 
to  define  the  precise  limits  of  the  right,  and  separate  the  rea- 
sonable and  permitted  use  of  a  stream  from  its  wrongful  ap- 
plication. So  in  the  recent  case  of  Earl  of  Sandwich  v.  Great 
Northern  Railway  Co.,^  it  was  held  that  a  railway  company 
who  are  riparian  proprietors  are  entitled  to  abstract  from 
the  stream  a  reasonable  supply  of  water  for  their  locomotive 
engines  and  their  station,  even  though  it  might  so  reduce  the 
quantity  of  water  as  to  stop  a  mill  on  the  river  for  a  few  min- 
utes every  day.  In  the  case  of  Miner  v.  Gilmour,^  which  was 
an  appeal  to  the  Privy  Council  from  Lower  Canada,  Lord 
Kingsdown,  who  said  that  in  this  particular  there  was  no 
material  distinction  between  the  French  law  prevailing  in 
Lower  Canada  and  the  English  law,  stated  the  law  in  these 
terms,  —  and  it  is  worthy  of  notice  that  his  lordship  made  a 
distinction  between  the  ordinary  and  the  extraordi-  Ordinary 
nary  use  of  water,  a  distinction  which  has  not  been  trawdl- 
generally  taken,  but  which  is  very  important,  hav-  ^^^Y  i^^e. 
ing  regard  to  the*  exercise  of  the  right :  "  By  the  general  law 
applicable  to  running  streams  every  riparian  proprietor  has  a 
right  to  what  may  be  called  the  ordinary  use  of  the  water 
flowing  past  his  land,  —  for  instance,  to  the  reasonable  use  of 
the  water  for  his  domestic  purposes  and  for  his  cattle,  —  and 
this  without  regard  to  the  effect  which  such  use  may  have  in 

1  10  Ch.  D.  707;  27  Weekly  Rep.  16  (1879).  It  has  ever  been  as- 
serted that  one  riparian  proprietor  may  lawfully  apply  all  the  water  of  a 
small  stream,  if  necessary,  for  such  ordinary  purpose  as  supplying  water 
for  his  cattle  or  household  purposes.  See  Tolle  v.  Correth,  31  Tex.  362; 
Rhodes  v.  Whitehead,  27  Tex.  310  ;  Stein  v.  Burden,  29  Ala.  132. 

i'  12  Moore  P.  C.  at  p.  156. 


298  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

case  of  a  deficiency  upon  proprietors  lower  down  tlie  stream. 
But  further,  he  has  a  right  to  the  use  of  it  for  any  purpose, 
or  what  may  be  deemed  the  extraordinary  use  of  it,  provided 
that  he  does  not  thereby  interfere  with  the  rights  of  other 
proprietors  eitlier  above  or  below  him.  Subject  to  this  con- 
dition he  may  dam  up  the  stream  for  the  purpose  of  a  mill,  or 
divert  the  water  for  the  purpose  of  irrigation.  But  he  has 
no  right  to  interrupt  the  regular  flow  of  the  stream  if  he 
thereby  interferes  with  the  lawful  use  of  the  water  by  other 
proprietors  and  inflicts  upon  them  a  sensible  injury."  It 
must,  however,  always  be  borne  in  mind  that  the  natural 
right  to  take  water  from  streams  extends  only  to  taking  it  for 
purposes  of  utility,  and  for  purposes  beneficial  to  the  riparian 
estate.^ 

The  question  has  often  arisen  in  the  American  courts,  how 
Cutting  far  a  riparian  proprietor  has  a  right  to  take  ice  from 
^^^'  natural  or  artificial  ponds  on  his  lands,  to  sell  as  an 

article  of  merchandise,  and  thus  diminish  the  quantity  of 
water  which,  sooner  or  later,  might  reach  the  owner  below. 
The  question  was  much  discussed  in  Cummings  v.  Barrett,'- 
on  an  application  by  a  lower  proprietor,  a  mill-owner,  for  an 
injunction  to  restrain  the  upper  proprietor  from  cutting  ice 
for  that  purpose.  The  injunction  was  refused  until  the  rights 
of  the  parties  could  be  determined  in  a  suit  at  law ;  Shaw, 
C.  J.,  saying,  "  It  is  quite  doubtful,  considering  the  complain- 
ants' claim  as  a  claim  for  actual  and  substantial  damage  done 
to  their  mills,  whether  the  cutting  and  carrying  away  of  the 
ice  mentioned,  or  of  any  quantity  of  ice,  would  diminish  the 
volume  of  water  which  would  come  to  the  complainants'  mills, 
and  of  which  they  could  avail  themselves  for  driving  their 
mills.  Ice  must  be  cut  in  winter.  It  usually  melts  in  the 
latter  part  of  winter,  or  early  part  of  spring,  together  with 
the  ice  and  snows  of  the  surrounding  country,  and  these,  to- 
gether with  the  rains  which  cause  and  promote  them,  consti- 
tute what  is  usually  called  the  spring  floods,  which  commonly 
cause  a  great  surplus  of  water  in  similar  mill  streams,  not 

9  Lord  Norbury  v.  Kitchin,  3  F.  &  F.  292, 
1  10  Cush.  186  (1852). 


WATER.  299 

only  not  available  to  any  useful  purpose,  to  mills,  but  often 
injurious. 

"  And  it  may  well  be  doubted  after  any  quantity  of  ice  cut 
from  such  a  pond,  whether  after  the  spring  floods  have  sub- 
sided, and  the  useless  surplus  of  water  passed  away,  and  long 
before  the  approach  of  any  "  dry  season,"  the  water  in  the 
pond  would  not  be  as  full  and  copious  for  all  mill  purposes  as 
if  no  ice  had  been  so  cut.  But  whether  so  or  not,  it  would  in- 
volve a  very  nice  question  of  fact,  to  be  tried  under  all  the 
advantages  which  the  testimony  of  science  and  experience 
could  afford  in  a  suit  at  law  where  the  right  depending  both 
on  the  fact  and  the  law   would  be  directly  in  issue." 

Since  that  time  the  weight  of  authority  seems  to  be  that 
the  owner  of  the  bed  of  a  stream  or  pond  ordinarily  has  a 
right  to  cut  and  remove  ice  therefrom  ;  subject  to  the  same 
principles  of  a  reasonable  use  as  in  abstracting  water.^ 

Whether  a  riparian  owner  may  use  the  water  of  a  natural 
stream  to  irrigate  his  land  depends  upon  the  quantity  of  water 

1  State  V.  Pottmeyer,  33  Ind.  402;  30  Ind.  287;  Paine  v.  Woods,  108 
Mass.  173  ;  Edgerton  v.  Huff,  26  Ind.  35,  ice  taken  from  a  canal;  Myer  v. 
Whitaker,  55  How.  Pr.  R.  376,  disapproving  of  Marshall  v.  Peters,  12  lb. 
218.  In  Mill  River  Woolen  Co.  v.  Smith,  34  Conn.  462,  it  was  held  that 
when  a  mill-owner  lawfully  flowed  the  land  of  another,  under  a  statutory 
right  to  do  so,  the  ice  formed  in  such  pond  belonged  to  the  mill-owner, 
and  not  to  the  riparian  proprietor;  but  this  is  directly  opposed  to  Paine  v. 
Woods,  108  Mass.  173,  where  it  was  held  that  the  landowner  could  law- 
fully take  and  carry  away  the  ice  for  use  or  sale,  provided  he  did  not 
thereby  appreciably  diminish  the  head  of  water  at  the  dam  of  the  mill- 
owner.  In  Massachusetts,  by  force  of  an  early  ordinance  of  1641-47,  great 
ponds,  containing  more  than  ten  acres,  were  made  public,  to  lie  in  com- 
mon for  public  use,  and  therefore  the  public  have  a  right  to  cut  and  carry 
away  ice  from  such  ponds,  and  the  riparian  proprietors  have  no  right  of 
action  for  so  doing.  West  Roxbury  v.  Stoddard,  7  Allen,  158;  Paine  v. 
Woods,  108  Mass.  169;  Commonwealth  v.  Vincent,  lb.  444  ;  Fay  v.  Sa- 
lem and  Danvers  Aqueduct  Co.  Ill  Mass.  27;  Hittinger  i;.  Eames,  121 
Mass.  546.  And  even  without  such  an  ordinance,  a  person  may  acquire 
a  right  to  ice  in  a  public  navigable  stream,  by  taking  possession,  marking 
and  staking  it  off,  and  expending  labor  upon  it  to  prepare  it  for  cutting, 
so  that  he  may  maintain  an  action  against  a  wrongdoer  for  taking  it  away. 
Hickey  v.  Hazard,  3  Mo.  App.  480. 


300      EXTENT  AND  MODE  OF  USER  OF  EASEMENTS. 

he  requires  and  the  injury  he  would  inflict   upon  other  ripa- 
rian owners.      In  Wood  v.  Waud,**  Pollock,  C.  B., 
right  to  ir-    observed  that  in  England,  it  is  not  very  clear  that 
nga  e  an  .   ^^^^^  ^^^^  ^^^.^  pyj^pogg  -vvould   be   permitted   to   the 

same  extent  as  it  is  allowed  in  France  and  America ;  while 
Cresswell,  J.,  in  Sampson  v.  Hoddinott,*  said,. that  irrigation 
is  a  riparian  right  to  be  exercised  subject  to  the  rights  of 
other  riparian  proprietors.  In  Embrey  v.  Owen,'  the  court 
said  that  user  for  irrigation  would  not  in  every  case  be  a  law- 
ful enjoyment  of  water,  even  if  the  water  were  again  returned 
to  the  river  after  being  diverted  on  to  land  with  no  other  dim- 
inution than  that  which  was  caused  by  absorption  ;  that  this 
must  depend  upon  the  circumstances  of  each  case,  for  on  the 
one  hand  it  could  not  be  permitted  that  the  owner  of  a  tract 
of  many  thousand  acres  of  porous  soil  abutting  on  one  part  of 
a  stream  could  be  permitted  to  irrigate  them  continually  by 
canals  and  drains,  and  so  cause  a  serious  diminution  of  the 
quantity  of  water,  although  there  were  no  other  loss  to  the 
natural  stream  than  that  arising  from  the  necessary  absorp- 
tion and  evaporation  of  the  water  employed  for  the  purpose  ; 
but  that,  on  the  other  hand,  one's  common  sense  would  be 
shocked  by  supposing  that  a  riparian  owner  could  not  dip  a 
watering-pot  into  a  stream  in  order  to  water  his  garden.  It 
is  thus,  the  court  added,  entirely  a  question  of  degree  ;  but 
there  is  often  no  difficulty  in  deciding  whether  a  particular 
case  falls  within  the  permitted  limits  or  not ;  and  in  the  case 
before  the  court  the  judges  said  they  thought  that  as  the  ir- 
rigation took  place  not  continuously,  but  only  at  intermediate 
periods  when  the  river  was  full,  and  no  damage  was  done 
thereby  to  the  working  of  the  mill,  and  the  diminution  of 
water  was  not  perceptible  to  the  eye,  it  was  such  a  reasonable 
use  of  the  water  as  not  to  be  prohibited  by  law. 

»•  3  Exch.  748;  18  L.  J.  Exch.  305. 

M  C.  B.  N.  S.  at  p.  603  ;  Miner  v.  Gilmour,  12  Moore,  P.  C.  per  Lord 
Kingsdown,  at  p.  156. 

«  6  Exch.  353;  20  L.  J.  Exch.  212. 


WATER.  301 


IN   AMERICA, 

the  right  to  divert  water  for  the  purpose  of  irrigation,  whether 
by  dipping  it  up  or  making  shiices  or  ditches  in  one's    ^  .     . 

1        1     •        r       1  •       1    1     •  1  •  Irrigation 

land,  IS  clearly  recognized,  being  subject  always  to  inAiner- 
the  same  rules  as  other  uses,  viz.,  it  must  be  a  rea- 
sonable diversion,  in  quantity  and  manner.^  This  question  of 
reasonableness  must  depend  upon  all  the  circumstances  of 
each  particular  case,  and  seems,  therefore,  to  be  always  a 
question  for  the  jury,  under  the  instruction  of  the  court.  And 
if  the  right  be  exercised  in  an  unreasonable  manner,  either  as 
to  amount  diverted,  or  the  time  of  year  the  diversion  takes 
place,  the  party  is  liable.^  One  element  of  reasonableness 
might  be  the  great  injury  to  the  owner  below,  as  compared 
with  the  small  benefit  to  the  owner  above  so  diverting  it. 
And  it  seems  that  some  actual  damage  to  the  proprietor  below 
is  necessary  in  order  to  give  a  cause  of  action  for  a  diversion 
of  part  of  a  watercourse,^  though  for  a  diversion  of  an  unrea- 
sonably large  part  of  a  stream,  and  not  returning  any  of  it 
into  the  channel  again,  an  action  might  lie  without  proof  of 
special  damage.^ 

User  of  the  water  of  a  stream  for  manufacturing  purposes 
is  a  riparian  right  if  the  quantity  and  purity  of  the  water  is 

1  See  Perkins  v.  Dow,  1  Root,  535;  Weston  v.  Alden,  8  Mass.  136; 
Blancbard  v.  Baker,  8  Me.  at  p.  266;  Tolle  v.  Correth,  31  Tex.  362;  El- 
liot V.  Fitchburg  Railroad  Co.  10  Cusli.  at  p.  194.  And  see  Pitts  v.  Lan- 
caster Mills,  13  Met.  156  ;  Tliurber  v.  Marten,  2  Gray,  394,  a  valuable 
case;  Haskins  v.  Haskins,  9  Gray,  390;  Springfield  ?;.  Hai-ris,  4  Allen,  494. 

2  See  Colburn  v.  Richards,  13  Mass.  420  ;  Anthony  v.  Lapham,  5  Pick. 
175;  Parker  v.  Griswold,  17  Conn.  288;  Union  Mills  v.  Ferris,  2  Sawyer, 
C.  C.  176  ;  Miller  v.  Miller,  9  Penn.  St.  74  ;  Crooker  v.  Bragg,  10  Wend. 
264;  Gillett  v.  Johnson,  30  Conn.  180,  an  interesting  case  on  this  point; 
Cook  V.  Hull,  3  Pick.  269;  Newball  v.  Ireson,  8  Cush.  595;  Chandler  v. 
Rowland,  7  Gray,  348;  Wadsworth  v.  Tillotson,  15  Conn.  366;  Evans  v. 
Merriweather,  3  Scam.  496,  where  the  subject  is  carefully  considered. 

8  See  Elliot  v.  Fitchburg  Railroad  Co.  10  Cush.  191,  where  the  subject 
is  elaborately  considered  by  Shaw,  C.  J.  And  see  Van  Hoesen  v.  Cov- 
entry, 10  Barb.  518;  Ferrea  v.  Knipe,  28  Cal.  341. 

*  See  Newhall  v.  Ireson,  8  Cush.  595;  Stowell  v.  Lincoln,  11  Gray,  434. 


302  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

not  altered  to  a  sensible  degree  to  the  prejudice  of  other 
Use  of  wa-  riparian  proprietors.  During  the  argument  of  Em- 
terforman-  i^j.gy  ^  Owen,  Alderson,  B.,  mentioned  a  case  which 
purposes,  liad  been  tried  before  him,  in  which  it  appeared 
that  water  was  taken  from  a  river  to  work  a  steam  engine  ; 
that  there  was  an  artificial  channel  from  the  river  to  a  reser- 
voir in  the  yard  belonging  to  a  mill,  and  the  water  was  there 
mixed  with  other  water  obtained  from  the  earth ;  the  whole 
was  then  used  for  the  steam  engine,  and  all  that  was  not  con- 
sumed was  transferred  back  to  the  river.  The  question  was, 
whether  that  mode  of  user  produced  actionable  injury  to  some 
other  mills  lower  down  the  stream.  The  learned  judge  said 
he  left  it  to  the  jury  to  say  whether  the  same  quantity  of 
water  continued  to  run  to  the  river  as  if  none  of  the  water 
had  entered  the  pi^emises  of  the  defendant,  telling  them  that 
if  they  were  of  that  opinion  they  should  find  a  verdict  for  the 
defendant." 

It  has  already  been  stated  that  the  extent  of  prescriptive 
rights  must  be  measured  and  determined  by  the  ac- 

Prcscrip- 

tive  right  customed  user  ;  if,  therefore,  a  part  of  the  water  of 
part  of  a  ^  stream  has  been  for  so  long  a  time  diverted  to  a 
stream.  ^^X  that  the  mill-owner  has  acquired  a  prescriptive 
title  to  divert  it,  his  right  is  limited  to  the  diversion  of  that 
quantity  of  water  which  he  has  been  accustomed  to  divert, 
and  he  cannot,  by  altering  his  machinery,  suddenly  acquire  a 
more  extensive  right." 

Where  a  right  to  flow  another's  land  by  a  watercourse  is 
Extent  of  acquired  solely  by  prescription,  all  agree  upon  the 
tioirto^"  ^"^^^  —  as  an  abstract  rule  —  that  the  extent  of  the 
flow.  right  is  to  be  measured  entirely  by  the  mode  and 

extent  of  the  use,^  but  all  are  not  so  well  agreed  upon  the 

"  Dakin  v.  Cornish,  mentioned  by  Alderson,  B.,  6  Exch.  at  p.  360.  See, 
also,  Wood  V.  Waud,  3  Exch.  748  ;   18  L.  J.  Exch.  305. 

^  Bealey  v.  Shaw,  6  East,  209  ;  Brown  v.  Best,  1  Wils.  K.  B.  174. 

^  See  instances  in  Cotton  v.  Pocasset  Man.  Co.  13  Met.  429;  Stein  v. 
Burdon,  24  Ala.  130;  Darlington  v.  Painter,  7  Penn.  St.  473;  Hall  v. 
Augsbury,  46  N.  Y.  622;  McNab  v.  Adamson,  6  Up.  Can.  Q.  B.  100;  8 
lb.  119;  Buell  v.  Read,  5  lb.  546;  McKechnie  v.  McKeyes,  10  lb.  37; 
Odiorne  v.  Lyford,  9  N.  H.  502  ;  Burnham  v.  Kempton,  44  N.  H.  78. 


WATER.  303 

practical  application  of  the  rule  to  a  given  state  of  facts.  For 
instance,  a  mill-owner  has  maintained  a  dam,  of  a  fixed  and 
'definite  height  for  more  than  twenty  years,  which  when  full 
will  flow  to  a  certain  known  height  on  the  land  of  owners 
above.  Now  all  agree  that  he  cannot,  under  his  prescriptive 
right,  raise  his  dam  so  as  to  flow  higher  than  before.^  But 
suppose,  instead  of  increasing  the  height  of  the  structure  of 
his  dam,  he  repairs  it,  tiglitens  the  leaks,  closes  more  con- 
stantly his  gates  and  wasteways,  introduces  new  and  im- 
proved machinery,  requiring  less  water  than  before,  by  all  of 
which  means  he  not  only  raises  the  water  higlier  than  he  act- 
ually did  in  the  former  condition  of  his  dam,  but  also  keeps 
the  water  more  constantly  at  or  near  the  highest  point  than 
was  practicable  under  the  former  circumstances.  What  is  now 
the  measure  and  extent  of  his  prescriptive  right ;  that  height 
to  which  he  did  actually  maintain  the  water,  for  twenty 
years,  or  that  to  which  he  could  have  done,  with  a  dam  no 
higher  than  he  always  kept,  had  he  always  used  the  modern 
improvements  now  introduced  ? 

There  is  a  difference  of  opinion  upon  that  question.  In 
Cowell  V.  Thayer  ^  the  Supreme  Court  of  Massachusetts,  in  a 
carefully  considered  case,  held  that  the  prescriptive  right  ex- 
tended to  all  that  his  dam  ivas  capable  of  flowing  without 
raising  its  structure  ;  even  though  it  occasioned  much  more 
damage  to  the  landowner  above  than  ever  before.  And  Shaw, 
C.  J.,  thus  vindicated  the  judgment  there  arrived  at :  "  It  is 
contended  on  the  part  of  the  landowner,  that  as  the  actual  use 
of  the  water  at  a  given  height,  by  the  mill-owner,  and  the  ac- 
quiescence in  such  use,  by  the  landowner,  is  the  foundation 
and  proof,  so  it  must  also  be  the  measure  and  limit  of  his 
right.  This,  to  some  extent,  is  true ;  and  whei-e  there  is  a 
definite  limitation  or  modification  of  the  use,  —  one  that  is 
practicable  and  measurable,  —  it  will  show  a  corresponding 
modification  of  the  right.     As  where,  for  example,  according 

1  Baldwin  v.  Calkins,  10  Wend.  167;  Whittier  v.  Cocheco  Man.  Co.  9 
N.  H.  454  ;  AVright  v.  Moore,  38  Ala.  598  ;  Gerenger  v.  Summers,  2  Ired. 
229;  Russell  v.  Scott,  9  Cow.  279. 

2  5  Met.  253. 


304      EXTENT  AND  MODE  OF  USER  OF  EASEMENTS. 

to  the  custom  of  the  country,  a  saw-mill,  or  other  mill,  has 
been  kept  up  in  the  winter  only,  and  the  mill-owner  has  uni- 
formly been  accustomed  to  draw  off  the  water  sufficiently 
early  in  the  spring  to  allow  the  growth  of  a  crop  of  grass, 
and  to  continue  it  down,  until  the  hay  is  cut  and  got  in,  it 
must  be  regarded  as  establishing  a  right  to  a  winter  privilege 
only,  and  not  a  constant  privilege  ;  and  then,  flowing  the 
land  through  the  year  must  be  considered  as  a  new  use,  not 
within  the  mill-owner's  prescriptive  right. 

"  So,  where  a  dam  had  been  kept  up  more  than  twenty 
years,  but  the  water  had  been  drawn  down  six  weeks  in  each 
year,  between  June  and  October,  to  enable  the  landowners 
to  get  clay,  it  was  considered  good  evidence  of  a  right  to  keep 
up  the  dam,  subject  to  such  limitation.  Bolivar  Manuf.  Co. 
V.  Neponset  Manuf.  Co.  16  Pick.  241.  Otlier  cases  may 
easily  be  imagined,  where  a  prescriptive  right,  proved  by  use 
and  enjoyment,  may  be  limited  and  qualified  by  a  definite  in- 
terruption in  the  constancy  of  such  use,  for  a  certain  time  or 
purpose,  in  favor  of  the  person  against  whom  the  right  is 
claimed.  But  in  determining  the  legal  rights  of  parties,  the 
law  looks  rather  to  practical  than  theoretical  distinctions,  and 
seeks,  as  far  as  possible,  to  place  them  upon  grounds  perma- 
nent and  general,  and  upon  principles  applicable  to  the  gen- 
erality of  cases,  not  shifting  and  varying  with  a  slight  change 
of  circumstances.  The  right,  when  once  established,  shall  be 
construed  favorably  to  the  party  acquiring  it.  Conformably 
to  these  rules,  it  has  long  been  held  that  where  one  has  ac- 
quired a  right  to  raise  and  maintain  a  head  of  water,  by  using 
it  for  one  purpose,  he  may  apply  it  to  another  ;  he  may  sub- 
stitute a  cotton  factory  for  a  saw-mill,  and  the  like;  and  this 
upon  the  ground  that  any  other  rule  would  put  a  stop  to  all 
improvements.  Cottel  v.  Luttrel,  4  Co.  87  ;  Saunders  v.  New- 
man, 1  B.  &  Aid.  258  ;  Biglow  v.  Battle,  15  Mass.  313  ; 
Johnson  v.  Rand,  6  N.  H.  22.  It  comes,  we  think,  within 
the  spirit  of  the  same  rule,  to  hold  that  when  a  man  has,  by 
his  dam,  raised  a  certain  head  of  water,  and  maintained  such 
dam  long  enough  to  raise  the  presumption  of  a  grant,  he  may 
not  only  use  his  head  of  water  for  another  purpose  or  branch 


WATER.  305 

of  business,  but  he  may  repair  his  dam,  and  make  it  tighter  ; 
he  may  use  improved  machinery,  taking  the  water  from  the 
top  instead  of  the  bottom  of  the  flume ;  and  generally,  he  may 
use  the  water  more  economically,  although  the  effect  may  be 
to  keep  the  water  more  constantly  at  the  upper  level.  Alder 
V.  Savill,  5  Taunt.  454. 

"  As  a  general  rule,  the  height  to  which  such  a  mill-owner 
will  have  a  prescriptive  right  to  maintain  the  water  will  de- 
pend upon  the  height  of  the  dam  by  which  he  has  raised  it. 
In  speaking  of  the  height  of  the  dam,  we  mean  it  to  be  under- 
stood as  the  efficient  height  of  the  dam  ;  the  height  to  which 
such  dam,  when  completed  and  finished,  with  its  rolling  dam, 
waste  ways,  &c.,  and  in  good  repair  and  condition,  will  raise 
the  head  of  water.  Parts  of  the  dam  of  earth,  or  other  mate- 
rials, may  be  raised  higher  than  it  is  ever  intended  to  raise 
the  water  by  such  dam.  This  is  not  intended  ;  but,  as  al- 
ready explained,  the  efficient  height. 

"  On  the  whole,  we  think  the  true  rule  is  this  :  that  when 
one  has  acquired  a  prescriptive  right  to  a  constant  mill  privi- 
lege, by  keeping  up  and  using  a  dam  more  than  twenty  years, 
which  dam,  in  its  usual  operation,  would  raise  the  water  to  a 
given  height,  and  has  used  it,  at  his  own  pleasure,  at  that 
height,  without  any  claim  of  right  on  the  part  of  any  other 
person  to  have  it  drawn  or  kept  down  for  any  part  of  the 
year,  or  upon  any  definite  occasion,  he  has  a  right  to  retain 
it  at  the  same  height,  although  from  the  former  leaky  condi- 
tion of  the  dam,  the  rude  construction  of  the  machinery,  or 
the  lavish  use  and  waste  of  the  stream,  the  water  has  not  in 
fact  been  constantly  or  usually  kept  up  to  that  height.  If, 
therefore,  he  repairs  the  dam,  without  so  changing  it  as  to 
raise  the  water  higher  than  the  old  dam,  when  tight  and  in 
repair,  would  raise  it,  or  uses  it  in  a  different  mode,  and 
thereby  keeps  up  the  water  more  constantly  than  before,  it 
is  not  a  new  use  of  the  stream,  for  which  an  adjacent  owner 
can  claim  damages,  but  a  use  conformable  to  his  prescriptive 
right." 

The  same  question,  or  a  very  similar  one,  subsequently  arose 

20 


306      EXTENT  AND  MODE  OF  USER  OF  EASEMENTS. 

in  the  same  coui't,  in  Ray  v.  Fletcher,^  in  which  it  appeared 
that  during  the  time  complained  of  the  water  raised  by  the 
defendant's  dam  "  flowed  higher,  and  covered  moi-e  of  the 
plaintiff's  land  than  it  had  ever  done  before,  and  that  the 
water  remained  upon  the  plaintiff's  land,  at  seasons  of  the 
year,  when  it  never  did  before  ;  "  but  it  did  not  appear  that 
the  defendant's  dam  had  been  actually  raised  within  twenty 
years  last  past ;  and  the  court  held  that  the  defendant  had  a 
right,  during  the  time  of  the  alleged  injury,  to  keep  up  and 
maintain  a  dam  of  the  same  height  as  that  which  he  had 
kept  up  and  maintained  for  twenty  years  before  the  com- 
mencement of  the  injury  complained  of,  although  the  water 
was  thereby  kept  up  more  uniformly,  and  flooded  to  a  greater 
height  than  by  the  former  dam,  and  although  the  land  of  the 
plaintiff  was  flooded  for  a  longer  period  of  the  year  than  be- 
fore. This  decision  was  held  to  be  substantially  in  conform- 
ity with  the  rule  laid  down  in  Cowell  v.  Thayer  ;  although  it 
was  said  that  case  might  require  some  slight  modification  in 
particular  expressions,  to  avoid  being  misunderstood.  "  It  is 
not,"  say  the  court,  "  the  actual  height  of  the  dam  which  will 
regulate  the  prescriptive  right  of  the  party  holding  it,  but  its 
efficient  height^  according  to  its  structure  and  operation,  to 
maintain  the  height  of  the  water,  when  in  repair,  and  in  good 
order ;  and  although  the  water  actually  raised  by  it  may  to 
some  extent  vary  from  one  season,  or  one  year,  to  another, 
owing  to  the  tightness  of  the  dam,  the  mode  of  using  the 
water,  the  different  seasons  as  being  dry  or  wet,  and  the  like, 
yet  these  considerations  are  too  variable  and  uncertain  to  be 
adopted  and  relied  upon  as  the  basis  of  a  right  acquired  by 
prescription.  We  think,  therefore,  the  efficient  height  of  the 
dam,  in  its  ordinary  action  and  operation,  measures  and  lim- 
its the  claim  of  the  mill-owner  to  raise  and  appropriate  the 
mill  power  of  the  stream ;  and  the  adverse,  continued,  peace- 
able, and  uninterrupted  use  and  enjoyment  of  the  privilege, 
according  to  such  claim,  is  evidence  of  the  acquiescence  of  all 

1  12  Cush.  200.  And  see  Jackson  v.  Harrington,  2  Allen,  242;  Morse 
V.Marshall,  13  Allen,  288;  Short  u.  Woodward,  13  Gray,  86;  Winnipi- 
seogee  Lake  Co.  v.  Young,  40  N.  H.  420. 


WATER.  807 

other  riparian  proprietors,  who  would  have  a  right  to  question 
and  contest  such  claim,  and,  therefore,  constitute  that  right  by- 
prescription,  which  would  be  the  result  of  a  grant  from  all 
such  other  proprietors  on  the  stream."  ^  The  same  view  has 
also  been  taken  in  other  courts.^  On  the  other  hand,  an  op- 
posite view  was  taken  in  Carlisle  v.  Cooper,^  and  very  strong 
reasons  are  there  advanced  in  its  support.  And  similar  views 
prevail  in  some  other  states,*  the  point  of  difference  between 
the  cases  being  whether  the  efficient  height  and  capacity  of 
the  dam  shall  be  the  test,  or  the  actual  height  and  condition 
of  the  ivater  for  twenty  years.  Convenience  and  Simplicity 
point  to  the  former  ;  the  analogies  of  the  law  are  claimed  to 
indicate  the  latter.  The  precise  point  may  not  be  considered 
as  yet  settled. 

As  the  accustomed  user  is  the  proper  measure  of  a  prescrip- 
tive rierht,  a  difficultv,  to  which  allusion  has  already    „ 

o      '  "  '  ,    "^      Measure  of 

been  made,  occurs  when  the  user  has  been  varying   prescrip- 

...  11     ,  ,  1  •       1     tive  right 

in  extent.  A  right  to  pollute  water  may  be  acquired  to  pollute  a 
by  prescription,  but  if  from  the  increase  of  a  manu-  ^^''e^'"- 
factory,  or  a  town,  the  quantity  of  foul  matter  cast  into  a 
stream  has  gradually  increased,  a  question  arises  as  to  the  ex- 
tent of  the  poUutor's  right,  if  the  user  has  been  such  as-  tO' 
confer  any  right  upon  him  at  all ;  the  question  is  whether  the 

1  This  case,  as  well  as  Cowell  v.  Thayer,  were  complaints  under  the 
mill  acts  for  flowage,  but  the  defence  of  prescription  set  up  in  them  was 
decided  solely  upon  common  law  principles,  irrespective  of  the  form  of  the 
remedy,  and  the  suggestion  to  the  contrary  in  Carlisle  v.  Cooper,.  4  C.  E. 
Green,  261,  is  apparently  erroneous. 

2  Hynds  v.  Shults,  39  Barb.  600 ;  Baker  v.  McGuire,  53  Geo.  245.  As 
to  the  use  of  "flash  boards,"  see  Marcly  v.  Shults,  29  N.  Y.  354 ;  Grigsby 
V.  Clear  Lake  Co.  40  Cal.  407. 

8  4  C.  E.  Green,  256  ;  6  lb.  578;  affirmed  in  Horner  v.  Stillwell,  35  N. 
J.  Law,  307  (1871). 

4  See  Griffin  v.  Bartlett,  55  N.  H.  123;  Town  v.  Faulkner,  56  N.  H. 
261;  Burnham  v.  Kempton,  44  N.  H.  90;  Custice  v.  Thompson,  19  N.  H. 
471  ;  Smith  v.  Russ,  17  Wis.  227;  Mertz  v.  Dorney,  25  Penn.  St.  519; 
Sabine  v.  Johnson,  35  Wis.  185,  in  which  Lyon,  J.,  says  that  Cowell  v. 
Thayer  is  "  in  conflict  with  nearly  all  of  the  adjudged  cases  on  this  sub- 
ject;" Gilford  V.  Lake  Co.  52  N.  H.  286;  Stiles  v.  Hooker,  7  Cow.  266. 
See  Lacy  v.  Arnett,  33  Penn.  St.  169. 


808  EXTENT   AND   MODE   OF   USER   OF  EASEMENTS. 

extent  of  the  user  at  its  first  commencement,  or  the  extent  of 
the  user  twenty  years  before  the  commencement  of  any  action 
or  suit  in  which  the  right  is  brought  in  question,  is  the  meas- 
ure of  his  right ;  for  it  clearly  cannot  be  the  extent  of  the 
user  at  any  more  recent  period.  If  it  is  the  extent  of  the 
user  at  its  first  commencement,  the  right  in  many  cases  will 
be  no  right  at  all,  for  it  frequently  happens  that  the  pollu- 
tion at  first  is  imperceptible,  but  if  the  extent  of  the  user 
twenty  years  before  any  action  or  suit  is  to  be  taken  as  the 
measure  of  the  right,  it  is  difficult  to  see  how  any  grant  can 
be  presumed  to  have  been  made  precisely  at  that  time,  for,  as 
it  is  uncertain  at  what  time  an  action  will  be  commenced,  it 
would  be  necessary  to  presume  a  constant  succession  of  grants 
perpetually  increasing  the  right,  one  of  which  happened  to  be 
twenty  years  before  action.  In  the  case  of  Crossley  &  Sons 
(Limited)  v.  Lightowler,""  Lord  Chelmsford,  L.  C,  decided 
that  a  prescriptive  right  having  been  acquired  to  pour  foul 
water  into  a  stream,  and  the  fouling  having  been  increased  by 
the  erection  of  new  factories  in  the  place  of  those  to  which 
the  right  was  attached,  "  the  user  which  originated  the  right 
must  also  be  its  measure,  and  it  cannot  be  enlarged  to  the 
prejudice  of  any  other  person."  It  will,  however,  be  remem- 
bered, that  in  the  case  of  Goldsmid  v.  The  Tunbridge  Wells 
Improvement  Commissioners,"^  the  master  of  the  rolls  ex- 
pressed his  opinion  that,  "  when  the  pollution  is  increasing, 
and  gradually  increasing  from  time  to  time,  by  the  additional 
quantity  of  sewage  poured  into  it,  the  persons  who  allow  the 
polluted  matter  to  flow  into  the  stream  are  not  at  liberty  to 
claim  any  right  or  prescription."  From  these  authorities, 
therefore,  it  would  seem  that  if  the  pollution  at  its  commence- 
ment was  defined  in  amount,  and  originated  from  a  cause  cer- 
tain, as  the  erection  and  use  of  a  factory,  a  prescriptive  right 
may  be  acquired,  and  the  measure  of  the  right  will  be  the  ex- 
tent of  pollution  at  the  commencement  of  the  user,  but  that  if 

•^  L.  R.  2  Ch.  App.  478;  36  L.  J.  Ch.  584. 

"^  L.  R.  1  Eq.  161;  35  L.  J.  Ch.  88;  on  appeal,  L.  R.  1  Ch.  App.  349; 
35  L.  J.  Ch.  382.     See  ante,  chapter  II.  p.  259. 


WATER.  309 

there  has  been  no  defined  commencement  no  right  can  be 
gained,  as  no  grant  can  be  presumed.^ 

When  a  right  to  poHute  a  stream  has  been  acquired  it  is  a 
right,  in  ordinary  cases,  and  unless  the  contrary  can 
be  shown,  not  merely  to  pollute  the  water  in  a  par-  by  particu- 
ticular  manner,  but  to  pollute  it  to  the  particular 
extent  in  that  or  any  similar  manner.  In  Baxendale  v. 
McMurray  ^  the  question  was  whether  the  owner  of  a  paper 
mill,  who  had  been  accustomed  to  pollute  a  stream  by  pouring 
in  refuse  liquor  after  making  paper  from  rags,  was  entitled  to 
pour  in  similar  filth  after  making  paper  by  a  new  process 
from  Esparto  grass.  Lord  Cairns,  L.  J.,  thought  the  ques- 
tion was  rather  one  of  fact  for  a  jury  than  one  of  law,  for  it 
was  what  was  the  right  or  easement  of  the  defendant,  the 
mill-owner  ?  Was  it  a  right,  specific  and  defined,  to  pollute 
the  stream  by  discharging  the  dirty  water  in  which  rags  have 
been  washed,  or  was  it  a  right  to  discharge  into  the  river  the 
refuse  liquor  and  foul  washings  produced  by  the  manufacture 
at  the  mills  of  paper  in  the  reasonable  and  proper  course  of 
such  manufacture,  using  the  materials  which  are  proper  for 
the  purpose,  but  not  increasing,  as  against  the  servient  tene- 
ment, to  any  substantial  or  tangible  degree,  the  amount  of 
pollution  ?  It  was  the  opinion  of  the  lord  justice,  that  upon 
the  facts  before  the  court  a  jury  would  have  found  that  the 
latter,  and  not  that  the  former,  was  the  right,  for  that  it  was 
difficult  to  suppose  the  existence  of  an  easement  founded  on, 
and  limited  to,  the  washing  of  rags. 

It  has  been  shown  that  if  the  owner  of  an  easement  ex- 
ceeds his  rightful  enjoyment,  or  does  anything  which   pou^jng 
would  after  long  user  produce  an  increased  right  or   ^^,'^^^1^^^^®'' 
easement,  the  servient  owner  may  obstruct  the  user    in  excess 
which  is  excessive,  but  that  if  it  is  impossible  to  ob- 
struct the  excessive  user  alone  without  at  the  same  time  stop- 
ping that  which  is    rightful,  it    is  a  matter    of   some  doubt 
whether  he  is  entitled  to  obstruct  the  rightful  as  well  as  the 

1  See  the  late  important  case  of  Prentice  v.  Geiger,  74  N.  Y.  341;  Glad- 
felter  v.  Walker,  40  Md.  1;  Thomas  v.  Brackney,  17  Barb.  654. 
s'  L,  R.  2  Ch.  App.  790. 


310  EXTENT   AND   MODE   OF  USER   OF  EASEMENTS. 

excessive  user,  or  whether  he  must  submit  to  the  increased 
burden  upon  his  estate.  The  rule  in  the  case  of  enlarged 
windows  has  been  referred  to,  but  if  the  easement  is  a  right 
to  pour  clear  water  over  land,  and  the  owner  of  the  easement, 
in  excess  of  his  right,  pours  dirty  with  clear  water,  it  has 
been  held  that  the  servient  owner  may  obstruct  the  enjoy- 
ment of  the  easement  altogether,  for  he  could  not  obstruct  the 
dirty  water  alone.  Alderson,  B,,  puts  the  right  of  total  ob- 
struction on  the  ground  that  "  if  a  man  has  a  right  to  send 
clean  water  through  my  drain  and  chooses  to  send  dirty 
water,  every  particle  of  the  water  ought  to  be  stopped,  be- 
cause it  is  all  dirty. ^ 

Riparian  rights  are  rights  which  the  law  gives  to  owners  of 

„    . .  land  abutting  on  a  natural  stream,  for  the  beneficial 

Partition  .  ^  '        , 

of  riparian  occupation  of  that  land  ;  they  are  derived  from,  and 
are  incident  to,  the  possession  of  that  land  ;  if,  there- 
fore, a  riparian  owner  grants  away  a  part  of  his  land  which 
does  not  abut  on  the  stream,  its  character  of  riparian  land  is 
destroyed,  and  the  grantee  does  not  become  entitled  to  ripa- 
rian rights."  In  the  case  of  Nuttall  v.  Bracewell,*  however, 
Assign-  the  majority  of  the  judges  expressed  an  opinion  that 
riparian  ^  riparian  proprietor  has  power  to  assign  his  riparian 
rights.         rights  to  a  stranger,  but  Pollock,  C.  B.,  and  Chan- 

^  Cawkwell  v.  Russell,  26  L.  J.  Exch.  34  (not  elsewhere  reported).  In 
his  judgment  in  this  case,  Pollock,  C.  B.,  said  :  "  Where  a  party  has  a  lim- 
ited right  of  this  kind,  and  exercises  that  limited  right  in  excess,  so  as  to 
produce  a  nuisance,  the  only  remedy,  and  the  only  way  whereby  the  party 
can  protect  himself,  is  by  stopping  the  whole,  as  was  done  in  a  case  (Ren- 
shaw  V.  Bean,  18  Q.  B.  112;  16  L.  J.  Q.  B.  219)  deciding  (though  it  is 
hardly  necessary  to  cite  a  decision  on  the  point,  it  is  so  very  clear  and  plain 
on  the  good  sense  of  the  matter  that  it  hardly  wants  an  authority),  that  if 
a  man  has  a  limited  right  to  the  use  of  a  window,  and  he  enlarges  it  con- 
siderably, the  only  way  in  which  the  person  who  is  annoyed  by  the  en- 
largement of  the  window  can  prevent  that  nuisance  is  by  erecting  a  barrier 
and  stopping  the  whole  up."  This  doctrine  was  overruled  in  the  case  of 
Tapling  v.  Jones,  in  the  House  of  Lords ;  and  in  the  Common  Pleas,  in 
the  same  case,  Keating,  J.,  said:  "The  casual  expression  attributed  to 
the  lord  chief  baron,  to  be  found  in  the  judgment  in  Cawkwell  v.  Rus- 
sell, 26  L.  J.  Exch.  46,  is  clearly  extra-judicial,  nor  is  the  case  itself  to 
be  found  in  the  contemporary  reports."     11  C.  B.  N.  S.  at  p.  313. 

«  Stockport  Waterworks  Co.  v.  Potter,  3  H.  &  C.  300. 

6  L.  R.  2  Exch.  1;  36  L.  J.  Exch.  1. 


WATER.  311 

nell,  B.,  thought  that  such  an  assignment  is  effectual  against 
the  assignor  only,  and  that  he  alone  can  be  sued  by  the  as- 
signee for  disturbance ;  Bramwell,  B.,  on  the  other  hand, 
thought  that  no  reason  had  been,  or  could  be  shown,  why  a 
riparian  proprietor  could  not  assign  his  riparian  rights  in  the 
same  way  and  with  the  same  effect  as  a  person  can  assign  any 
other  species  of  property. 

When  an  easement  or  right  in  water,  or  a  water  power,  is 
claimed  by  virtue  of  an  express  grant,  the  mode  and  Easements 
extent  of  the  use  is  of  course  to  be  determined  by  ^^  ^^^^^^' 
the  words  of  the  grant,  which  are  seldom  so  similar  as  to 
make  the  decision  of  one  case  an  exact  precedent  for  another ; 
and  the  question  is  one  simply  of  construction  in  each  partic- 
ular case,  but  some  general  rules  seem  to  have  been  recog- 
nized as  aids  in  arriving  at  the  result  in  such  cases.  The  first 
is  that  when  the  words  used  in  the  grant  are  so  ambiguous  as 
to  leave  it  in  doubt  whether  the  grant  was  of  water  to  carry 
some  particular  mill,  or  to  be  used  only  for  some  special  or 
limited  purpose,  or  was  of  water  sufficient  to  carry  a  particular 
mill,  —  referring  to  the  mill  simply  as  a  measure  of  power  or 
quantity,  —  the  tendency  of  courts  is  to  construe  the  grant  as 
one  of  so  much  power  or  quantity  of  water  rather  than  as  a 
limit  to  a  specific  use,  and  so  it  would  not  be  forfeited  by  us- 
ing the  water  for  any  other  lawful  purpose  or  use.  This  con- 
struction is  resorted  to  in  cases  of  equivocal  or  ambiguous 
language,  as  being  most  beneficial  to  the  grantee,  and  as  most 
conducive  to  the  public  interests.^ 

In  Biglow  V.  Battle,^  the  plaintiffs,  being  the  owners  of  the 
entire  water  power   of  the  Charles  River,  at  Natick,  Mass., 

^  See  this  principle  of  construction  stated,  or  acted  upon,  in  Pratt  v. 
Lamson,  2  Allen,  282  ;  Cromwell  v.  Selden,  3  Comst.  253  ;  Dewey  v.  Wil- 
liams, 40  N.  H.  228;  Toiirtellot  v.  Phelps,  4  Gray,  374  ;  Kaler  v.  Beaman, 
49  Me.  207;  Biglow  v.  Battle,  15  Mass.  312;  Wakeley  r.  Davidson,  26 
N.  Y.  387;  Johnson  v.  Rand,  6  N.  H.  22;  Bullen  v.  Runnels,  2  N.  H. 
255;  Borst  v.  Empie,  1  Seld.  33;  Hurd  v.  Curtis,  7  Met.  94;  Rogers  v. 
Bancroft,  20  Vt.  250;  Olmsted  v.  Loomis,  6  Barb.  152;  Fiske  v.  Wilbur, 
7  lb.  395. 

2  15  Mass.  313.  And  Cromwell  v.  Selden,  3  Comst.  253,  was  much 
like  it. 


312  EXTENT   AND   MODE   OF  USER   OF   EASEMENTS. 

granted  by  lease  to  the  defendants  the  privilege  of  taking 
from  the  plaintiffs'  dam  a  specified  quantity  of  water,  "  ex- 
cept when  the  quantity  of  water  is  so  small  as  not  to  be  suffi- 
cient to  carry  the  plaintiffs'  grist  mill,  and  a  cotton  factory 
which  may  be  erected,  with  not  more  than  five  thousand  spin- 
dles." Instead  of  erecting  a  cotton  factory,  the  plaintiffs  af- 
terwards built  a  paper  mill,"  and  brought  an  action  against 
the  defendants  for  taking  more  water  from  the  plaintiffs'  dam 
than  by  their  lease  the  defendants  had  a  right  to  take.  For 
the  defence  it  was  insisted  that  the  water  power  reserved  for 
the  plaintiffs  was  for  the  use  of  a  cotton  mill  containing  five 
thousand  spindles.  Until  such  a  mill  should  be  erected,  the 
reservation  was  not  to  take  effect.  Being  an  exception  in  a 
grant,  it  should  be  taken  most  strongly  against  the  grantors. 
It  was  no  part  of  the  contract  that  the  plaintiffs  should  have 
a  right  to  the  water  for  the  use  of  a  paper  mill.  But  it  was 
held  that  the  right  reserved  did  not  limit  the  use  of  the  water 
to  a  cotton  factory  :  that  the  true  intent  of  the  reservation 
was  that  the  water  should  at  all  times  be  left  sufficient  to 
carry  five  thousand  spindles.  "  It  cannot  be  imagined,"  said 
the  court,  "  that  the  plaintiffs  would  limit  and  restrict  the 
use  of  their  own  privilege,  nor  could  it  be  of  any  importance 
to  the  defendants,  when  the  contract  was  made,  to  what  use 
that  part  of  the  water  to  which  they  had  no  claim  should  be 
applied." 

But,  on  the  other  hand,  when  the  language  of  the  deed 
clearly  limits  the  use  of  the  water  to  some  specific  object  or 
purpose,  the  extent  and  mode  of  use  must  strictly  conform  to 
the  grant,  or  it  is  lost.^ 

Thus,  in  Ashley  v.  Pease,^  the  plaintiff,  being  the  owner  of 
an  entire  water  privilege,  granted  and  conveyed  to  the  de- 
fendant's ancestor  a  fulling  mill,  and  covenanted  with  him 

1  See  De  Witt  v.  Harvey,  4  Gray,  486;  Ashley  v.  Pease,  18  Pick.  268; 
Strong  V.  Benedict,  5  Conn.  210;  Shed  v.  Leslie,  22  Vt.  498;  Garland  v. 
Hodsdon,  46  Me.  511;  Deshon  v.  Porter,  38  Me.  289.  And  see  Richard- 
son V.  Bigelow,  15  Gray,  154;  Jennison  v.  Walker,  11  Gray,  423;  Ganley 
V.  Looney,  14  Allen,  40. 

2  18  Pick.  268.     See,  also,  Strong  v.  Benedict,  5  Conn.  210. 


WATER.  313 

that  -when  there  should  be  a  sufficiency  of  -water  to  carry  and 
supply  the  uses  of  all  the  mills  then  standing,  or  which  might 
thereafter  be  standing  in  their  place,  on  the  dam,  he  would 
suffer  and  permit  him  to  draw  from  the  flume  "  so  much 
water  as  might  be  necessary  to  carry  and  supply  the  fulling 
mill  then  standing,  or  which  might  thereafter  stand  upon  the 
lot  "  so  granted  ;  but  where  there  was  not  a  sufficiency  of 
water  for  the  purposes  and  uses  aforesaid,  then  he  was  to 
draw  water  for  the  use  of  said  fulling  mill,  or  mills,  twelve 
hours  successively  in  the  twenty-four,  and  no  more. 

The  grantee  also  covenanted,  in  the  same  instrument,  that 
he  would  never  use  or  occupy  the  fulling  mill,  nor  any  other 
mill  or  building  which  might  thereafter  stand  in  the  same 
place,  so  as  to  interfere  with  or  obstruct  the  going  or  working 
of  the  plaintiff's  saw-mill,  or  any  other  mill  or  building  which 
the  plaintiff  might  erect  in  the  same  place.  The  defendant 
erected  a  cardii^g  machme  in  the  same  building  occupied  as  a 
fulling  mill,  and  used  the  water  for  running  both,  but  not 
both  at  the  same  time.  The  court  held  that  it  was  manifest, 
from  the  general  tenor  of  the  contract,  that  it  was  the  in- 
tention of  the  parties  that  the  grant  should  be  limited  to  the 
use  of  the  water  for  driving  the  fulling  mill  only,  and  that 
the  use  of  it  for  a  carding  machine  was  unauthorized.  That 
this  is  what  the  parties  intended,  the  court  said,  was  con- 
firmed by  the  grantee's  covenant  not  to  obstruct  or  interfere 
with  the  plaintiff's  mills,  by  using  and  diminishing  the  water 
power,  except  by  drawing  water  to  cai'ry  and  supply  the  fulling 
mill. 

So  where  L.,  the  owner  of  a  water  power,  and  a  furnace  and 
mills,  devised  the  furnace  and  "the  privilege  of  using  water 
to  blow  with,"  it  was  held  that  the  use  of  water  was  to  be 
confined  to  blowing  the  bellows  for  the  furnace,  and  could  not 
be  extended  to  using  the  power  for  grinding  and  finishing  the 
castings  made  in  the  furnace,  although  such  were  the  ordinary 
operations  and  uses  of  water  in  every  furnace.^  But  the  lim- 
its of  this  treatise  will  not  allow  us  to  pursue  this  subject 
farther. 

1  Lincoln  v.  Lincoln,  110  Mass.  449. 


314  EXTENT   AND   MODE    OF   USER   OF  EASEMENTS. 


WATS. 

There  are  various  kinds  of  rights  of  way  ;  for  a  right  of 
Rights  of  way  may  be  general  in  its  character,  that  is,  usable 
eraf  of  lim-  ^'^^'  ^^^  purposes,  or  it  may  be  a  limited  right,  as  a 
ited.  right  of  way  for  carriages,  but  not  for  carts  ;  or,  for 

horses,  and  not  for  carriages ;  or,  it  may  simply  be  a  footway. 
So,  also,  the  right  may  be  limited  as  to  time,  for  it  may  be  a 
right  to  use  the  way  only  when  certain  gates  are  open,  or  be- 
tween particular  hours,  or  at  certain  times  of  the  year.*^ 

If  a  right  of  way  has  been  granted  by  deed,  the  extent  of 
Measure  of  the  right  must  be  determined  by  the  words  of  the 
wav^mnt-  deed,i  though  surrounding  circumstances  may  be 
ed  by  deed,  taken  into  consideration  to  determine  the  intention 
of  the  parties  to  the  deed,**  and  there  being  this  guide,  it  is 

=  Jackson  v.  Stacey,  Holt  N.  P.  455;  Brunton  v.  Hall,  1  Q.  B.  792; 
10  L.  J.  Q.  B.  258;  Ardley  v.  St.  Pancras  Guardians,  39  L,  J.  Ch.  871 
(not  elsewhere  reported)  ;  Watts  v.  Kelson,  L.  R.  6  Ch.  App.  note,  p.  169. 
In  Mercer  v.  Woodgate,  L.  R.  5  Q.  B.  26;  39  L.  J.  M.  C.  21,  it  was  held 
that  a  landowner  may  dedicate  a  way  to  the  public,  subject  to  a  right 
reserved  of  ploughing  up  the  soil,  and  temporarily  destroying  the  way  at 
particular  times ;  so  also  in  Arnold  v.  Blaker,  L.  R.  6  Q.  B.  433;  40  L.  J. 
Q.  B.  185,  and  Arnold  v.  Holbrook,  L.  R.  8  Q.  B.  96;  42  L.  J.  Q.  B.  80; 
and  doubtless  a  private  right  of  way  may  be  granted  subject  to  the  same 
right  of  periodical  obstruction.  In  an  old  case  (Tomlin  v.  Fuller,  1  Mod. 
27,  called  Anonymous,  1  Vent.  48)  it  was  held  that  a  right  of  way  through 
a  house  can  only  be  used  at  reasonable  times,  and  that  the  owner  of  the 
house  need  not  always  leave  his  doors  open;  also,  that  if  the  doors  are 
closed,  the  owner  of  the  easement  must  request  leave  to  pass. 

1  See  Miller  v.  Washburn,  117  Mass.  371;  Bond  v.  Fay,  12  Allen,  86. 
And  for  this  reason  a  grant  of  a  right  merely  "  to  cross  "  the  grantor's 
land  does  not  give  the  grantee  a  right  to  enter  at  one  place,  with  timber, 
and,  turning  round  in  a  space  six  or  seven  rods  in  width,  come  out  at  an- 
other place  on  the  same  side  of  the  lot.  Comstock  v.  Van  Deusen,  5  Pick. 
163.  And  a  reservation  by  a  grantor  to  pass  from  a  certain  street  over 
the  servient  estate  "to  the  line  "  of  the  dominant  estate,  does  not  give  a 
right  to  pass  along  the  boundary  line  between  the  estate  after  reaching 
the  line.     Brossart  v.  Corlett,  27  Iowa,  288. 

<^  United  Land  Co.  v.  Great  Eastern  Railway  Co.  L.  R.  10  Ch.  App. 
586;  44  L.  J.  Ch.  685;  Cousens  v.  Rose,  L.  R.  12  Eq.  366;  Choate  v. 
Burnham,  7  Pick.     74. 


WAYS.  316 

not  very  frequently  that  disputes  arise  as  to  the  extent  of 
ways  so  granted ;  but  when  rights  of  way  have  been  acquired 
by  prescription,  or  of  necessity,  questions  as  to  the  extent  of 
the  easement  frequently  arise. 

The  modern  English  cases  seem  to  establish  the  principle 
that  where  there  is  an  express  grant  of  a  right  of  way  to  a 
particular  place,  and  the  grantee  is  entitled  to  an  unrestricted 
use  of  such  place,  the  grant  is  not  to  be  restricted  to  access  to 
that  place  for  the  purposes  for  which  access  was  required  at 
the  time  of  the  grant.^  Thus,  in  a  late  case,  by  an  award  un- 
der an  Inclosure  Act,  there  was  set  out,  "  one  other  private 
carriage  road  and  drift -way  called  '  Broadmead  Drive,'  which 
shall  forever  hereafter  remain  a  private  carriage  road  and  drift- 
way for  the  use  of  the  respective  owners  and  occupiers  for 
the  time  being,  of  the  allotments  over  which  the  same  passes," 
and  of  several  old  inclosed  meadows  (specified),  one  of  which 
was  a  field  subsequently  purchased  by  the  defendants,  un- 
der their  statutory  powers,  and  in  which  they  erected  a  cattle 
pen,  at  the  spot  where  said  way  or  Broadmead  Drive  crossed 
their  line,  to  be  used  for  the  collection  of  cattle  to  be  con- 
veyed from  or  to  their  railway.  At  the  time  of  making  the 
the  original  award  the  way  was  used  merely  for  access  to  a 
few  meadows,  and  only  for  agricultural  purposes ;  but  the  de- 
fendants claimed  a  right  to  use  it  for  driving  cattle  to  and 
from  their  said  cattle  pen  ;  and  it  was  held  they  had  a  right 
so  to  doj  as  against  the  owners  of  the  soil  of  the  way,  although 
the  altered  circumstances  had  thus  greatly  increased  the 
amount  of  the  travel  and  its  character ;  ^  and  Allan  v.  Gome, 
11  A.  &  E.  759,  and  Skull  v.  Gleinster,  16  C.  B.  N.  S.  816, 
were  commented  upon  and  distinguished,  if  not  doubted. 

If  a  right  of  way  has  been  acquired  by  prescription,  its  ex- 
tent must  be  measured  and  determined  by  the  accustomed 
user ;  this,  however,  is  a  method  of  measurement  not  by  any 

1  Finch  V.  Great  Western  Railway  Co.  28  Weekly  Rep.  229  (1879); 
United  Land  Co.  v.  Great  Eastern  Railway  Co.  L.  R.  17  Eq.  158;  af- 
firmed on  appeal,  L,  R.  10  Ch.  App.  586;  Newcomen  v.  Coulson,  L.  R. 
5Ch.  D.  133. 

2  Finch  V.  Great  Western  Railway  Co.  supra. 


316      EXTENT  AND  MODE  OF  USER  OF  EASEMENTS. 

means  certain  ;  and  questions  frequently  arise  whether  the 
Measure  of  accustomecl  user  is  not  evidence  of  a  general  right 
wayac-  ^^r  all  purposes,  though  it  may  itself  from  surround- 
quired  by     ^^„  circumstanccs  have  been  limited   to  particular 

prescrip-  o  ^  i 

tion.  purposes,  and  it  may  also  be  open  to  doubt  whether 

a  user  of  one  kind  is  not  evidence  of  a  right  also  for  a  more 
limited  purpose,  thus,  whether  a  user  of  a  way  for  carriages 
is  not  evidence  of  a  right  of  way  for  horses,  and  whether  a 
right  of  way  for  horses  does  not  include  a  right  of  way  for 
foot  passengers.  These  matters  cannot  be  determined  by  any 
general  rules,  but  must,  whenever  disputed,  be  settled  by  a 
jury.  There  are,  however,  a  few  cases  which  have  been  ar- 
gued on  this  topic,  and  may  be  used  as  guides  for  the  future. 
In  Parks  v.  Bishop,^  it  was  declared  that  where  a  right  of 
way  exists  by  adverse  use  and  enjoyment  only,  although 
evidence  of  the  exercise  of  the  right  for  a  single  purpose  will 
not  prove  a  right  for  other  purposes,  yet  proof  that  it  was 
used  for  a  variety  of  purposes,  covering  every  purpose  required 
by  the  dominant  estate  in  its  then  condition,  is  evidence  from 
which  may  be  inferred  a  right  to  use  the  way  for  all  pur- 
poses which  may  be  reasonably  required  for  the  use  of  that 
estate,  while  substantially/  in  the  same  condition.  But  if  the 
condition  and  character  of  the  dominant  estate  are  substanti- 
ally altered,  —  as  in  the  case  of  a  way  to  carry  off  wood  from 
wild  land,  which  is  afterwards  cultivated  and  built  upon ; 
or  of  a  way  for  agricultural  purposes  to  a  farm,  which  is 
afterwards  turned  into  a  manufactory  or  divided  into  build- 
ing lots,  —  the  right  of  way  cannot  be  used  for  new  purposes, 
required  by  the  altered  condition  of  the  property,  and  impos- 
ing a  greater  burden  upon  the  servient  estate.^  In  Cow- 
ling V.  Higginson,*  it  appeared  that  a  way  had  immemo- 
rially  been  used  for  agricultural  purposes  in  connection  with 
a  farm  ;    but  that  until  shortly  before  the  action  no  coal  had 

1  120  Mass.  340.     And  see  Sloan  v.  Holliday,  30  L.  J.  N.  S.  757  (not 
elsewhere  reported). 

2  Atwater  v.  Bodfish,  11  Gray,  150;  Wimbledon  and  Putney  Commons 
Conservators  v.  Dixon,  1  Ch.  D.  362. 

«  4  M.  &  W.  245;   7  L.  J.  N.  S.  Exch.  265. 


WAYS.  31T 

been  carried  over  the  way.  The  question  was  whether  the 
accustomed  user  was  evidence  of  a  general  right  of  way,  in- 
ckiding  a  right  to  carry  coal  from  recently  opened  mines  un- 
der the  defendant's  land.  Lord  Abinger,  C.  B.,  in  giving 
judgment,  said  :  "  I  should  certainly  say  that  it  is  not  a  nec- 
essary inference  of  law  that  a  way  for  agricultural  purposes 
is  a  way  for  all  purposes ;  but  that  it  is  a  question  to  be  de- 
termined upon  the  various  facts  established  in  each  case.  If 
a  way  has  been  used  for  several  purposes  there  may  be  a 
ground  for  inferring  that  there  is  a  right  of  way  for  all  pur- 
poses ;  but  if  the  evidence  shows  a  user  for  one  purpose,  or 
for  particular  purposes  only,  an  inference  of  a  general  right 
would  hardly  be  presumed."  Parke,  B.,  in  the  same  case, 
said,  that  user  for  all  the  purposes  for  which  the  way  was 
wanted,  during  the  prescriptive  period,  would  be  evidence  to 
go  to  the  jury  of  a  general  right;  that  if  the  user  of  a  way  is 
confined  to  one  purpose,  doubtless  a  jury  would  not  extend 
it ;  but  if  a  way  is  used  for  a  variety  of  purposes,  a  j  ury 
would  be  warranted  in  finding  that  the  right  extended  to  all 
purposes.-''  In  Ballard  v.  Dyson,^  the  defendant  in  replevin 
avowed  taking  a  heifer  damage  feasant,  and  the  plaintiff 
pleaded  a  right  of  way  for  cattle  to  a  certain  building.  It 
appeared  that  the  building  had  formerly  been  a  barn,  but  had 

f  See,  also,  Wimbledon  and  Putney  Commons  Conservators  v.  Dixon, 
1  Ch.  D.  362;  45  L.  J.  Ch.-353;  Dare  v.  Heathcote,  25  L.  J.  Exch.  245 
(not  elsewhere  reported)  ;  Jackson  v.  Stacey  Holt,  N.  P.  455  ;  Chichester 
V.  Lethbridge,  Willes,  71.  In  Wimbledon  and  Putney  Commons  Conserva- 
tors V.  Dixon,  Lord  Justice  James  said  that  "  when  we  consider  these  dicta 
and  observations,  in  connection  with  the  very  clear  language  of  the  Court 
of  Queen's  Bench,  in  Allan  v.  Gome,  11  A.  &  E.  759,  and  of  Lord  Chief 
Justice  Bovill  and  Mr.  Justice  Willes  in  the  case  of  Williams  v.  James, 
L.  R.  2  C.  P.  577;  16  L.  T.  R.  N.  S.  664,  I  am  quite  satisfied  that  the 
true  principle  is  the  principle  laid  down  in  the  later  cases,  namely,  that 
you  cannot,  from  evidence  of  user  of  property  in  its  original  state,  infer 
a  right  to  use  it  in  whatever  form  and  for  whatever  purpose  that  prop- 
erty may  be  changed;  that  is  to  say,  if  there  be  a  right  of  way,  however 
general,  for  whatever  purposes,  to  a  field,  the  person  who  is  the  owner 
of  the  field  cannot  from  that  say,  I  have  the  right  to  turn  that  field  into 
a  manufactory,  or  into  a  town  or  tan-yard,  and  then  use  the  right  of  way 
for  the  purposes  of  the  manufactory  or  town  so  built." 
0  1  Taunt.  279. 


318  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

been  converted  into  a  stable,  and  that  the  last  preceding  oc- 
cupier, who  was  a  pork-butcher,  had  used  it  for  slaughtering 
pigs,  and  that  the  then  occupier,  who  was  a  butcher,  used  it 
as  a  slaughter-house  for  oxen,  The  way  was  so  narrow  that, 
when  a  cart  was  driven  through,  foot  passengers  were  com- 
pelled to  retreat  into  the  houses  on  either  side,  and  they 
would  have  been  exposed  to  considerable  danger  if  they  had 
met  horned  cattle  in  the  passage.  The  preceding  occupier  had 
been  accustomed  to  drive  hogs  over  the  way,  and  the  occupier 
^t  the  time  of  the  action  had  been  used  to  drive  a  cart,  the 
only  carriage  he  possessed,  drawn  by  a  horse  or  ox,  and  had 
then  recently  begun  to  drive  fat  oxen  for  slaughter.  The  de- 
fendant admitted  that  there  was  sufficient  evidence  of  a  right 
of  way  for  all  manner  of  carriages,  and  it  was,  therefore,  con- 
tended for  the  plaintiff  that  there  was  a  right  of  way  for  all 
manner  of  cattle.  Mansfield,  C.  J.,  said,  that  though  in  cer- 
tain cases  a  general  way  for  carriages  may  be  good  evidence 
from  which  a  jury  may  infer  a  right  of  way  for  cattle,  yet  it 
is  only  evidence,  and  they  must  compare  the  reasons  they  have 
for  forming  an  opinion  on  either  side,  and  he  instanced  sev- 
eral cases  in  which  it  would  be  reasonable  only  to  presume  a 
grant  of  right  of  way  for  carriages.  The  chief  justice  added, 
that  he  could  find  no  case  in  which  it  had  been  decided  that  a 
carriage-way  necessarily  implied  a  drift-way,  though  it  ap- 
peared sometimes  to  be  taken  for  granted,  and  Heath,  J,, 
stated,  that  a  carriage-way  would  include  a  horse-way,  but 
not  a  drift-way.  Lawrence,  J.,  said,  "  A  grant  of  a  carriage- 
way had  not  always  been  taken  to  include  a  drift-way 

The  use  proved  here  is  of  a  carriage-way  :  the  grant  is  not 
shown,  and  the  extent  of  it  can  only  be  known  from  the 
use.  If  the  use  had  been  confined  to  a  carriage-way,  I  should 
have  had  no  difficulty  whatever  in  saying  that  it  afforded  no 
evidence  of  a  way  for  horned  cattle,  for,  till  they  were  driven 
there,  no  opposition  could  be  made,  nor  the  limitation  of  the 
right  shown ;  but  pigs  have  been  driven  that  way,  and  stress 
is  laid  upon  this  circumstance.  That  may  be  good  evidence 
of  a  right  to  drive  pigs  that  way,  but  the  user  of  the  way  for 
pigs  is  not  proof  of  a  right  of  way  for  oxen.     The  grantor 


WAYS.  319 

might  well  consider  what  animals  it  was  proper  to  admit  and 
what  not.  There  is  no  danger  from  pigs,  and  carriages  always 
have  some  one  to  conduct  them.  Cattle  may  do  harm,  and 
passengers  cannot  always  get  out  of  their  way ;  but  if  the 
cattle  are  driven  forward,  serious  injury  may  be  done.  The 
nature  of  the  place,  therefore,  may  probably  have  suggested 
a  limitation  of  the  grant." 

In  Wimbledon  and  Putney  Commons  Conservators  v.  Dixon,^ 
the  owner  of  a  farm  adjoining  a  common,  and  to  which  access 
for  horses  and  carriages  had  been  obtained  from  time  imme- 
morial by  ancient  tracks  over  the  common  from  one  point  to 
another,  but  by  no  clearly  defined  road,  sought  to  erect  houses 
on  a  portion  of  his  farm,  and  use  a  road  which  had  recently 
been  made  in  substitution  for  the  ancient  tracks  over  the 
common,  for  the  purpose  of  drawing  building  materials,  in- 
tending afterward  to  use  it  as  a  means  of  access  to  the  houses 
when  built.  Held,  that  the  owner  of  the  farm  had  no  right 
to  increase  the  burden  of  the  servient  tenement  by  changing 
the  character  of  his  property,  and  that  an  injunction  would 
be  granted  to  restrain  the  owner  of  the  farm  from  drawing 
the  materials  foi*  the  erection  of  the  proposed  houses,  and  from 
any  other  excessive  user  of  the  road.  This  decision  was  made 
notwithstanding  the  fact  that,  in  addition  to  using  the  an- 
cient tracks  for  access  to  the  farm  for  ordinary  agricultural 
purposes,  the  owner  or  his  predecessors  had  also  drawn  over 
the  tracks  building  materials  for  adding  a  wing  to  the  farm- 
house, and  for  converting  a  mud  hovel  into  a  brick  cottage. 

A  right  of  way  of  necessity  is  coextensive  with  the  neces- 
sity, both  as  to  the  mode  in  which  the  way  may  be    pi„.ijts  ^f 
used  and  as  to  the  duration  of  the  right,  for  it  will   '■'^^y  »? 

°  .  necessity 

be  shown  hereafter  that  a  right  of  way  of  necessity   coexten- 
is  extinguished  when  the  necessity  ceases.'*    If,  there-   the  neces- 
fore,  premises  be  demised  to  a  tenant  for  a  particular   ^'^^'' 
purpose,  and  he  has  no  means  of  access  to  them  other  than 
by  crossing  his  landlord's  ground,  he  becomes  entitled  to  a 

1 1  Ch.  D.  362. 

*  Holmes  v.  Goring,  2  Bing.  76;  2  L.  J.  C.  P.  134;  Osbora  v.  Wise,  7 
C.  &P.  761. 


320  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

way  of  necessity  over  that  ground,  and  the  way  must  be  suit- 
able for  the  business  to  be  carried  on  by  the  tenant.* 

Under  ordinary  circumstances  the  owner  of  a  private  right 
Aiteraiion  of  way  IS  entitled  to  enter  the  way  at  one  and  the 
acce'ss^toa  ^ame  place  only,  and  not  at  any  other  ;  for  instance, 
way-  if  a  way  to  a  field  runs  by  the  side  of  the  field,  the 

dominant  owner  is  not  entitled  to  alter  the  position  of  the  gate 
through  which  he  has  been  accustomed  to  pass  from  the  field 
to  the  way,  and  to  make  a  new  passage  at  a  fresh  place.  This 
is  not,  however,  the  rule  in  cases  of  public  ways,  and  the  dis- 
tinction was  pointed  out  by  Chambre,  J.,  in  the  case  of 
Woodyer  v.  Hadden,-'  when  he  said  :  "  A  public  road  differs 
from  a  private  road  in  this  ;  you  may  make  an  opening  in 
your  fence  and  go  into  it  at  any  part  of  the  length  of  the  pub- 
lic road,  or  at  the  end  ;  but  in  a  private  road  you  must  go  in 
at  the  usual  and  accustomed  part."  The  reason  for  this  rule 
seems  to  be  that  a  private  right  of  way  must  have  its  origin 
in  a  grant,  and  though  a  grantor  may  not  object  to  a  person 
entering  his  land  from  the  way  at  one  particular  spot,  for  that 
may  not  cause  him  any  inconvenience,  yet  it  may  be  very 
much  against  his  inclination  that  he  should  enter  it  at  any 
other  place.  If  a  grant  of  the  way  has  to  be  presumed,  as  in 
cases  of  prescriptive  claims,  it  cannot  be  presumed  that  the 
grantor  gave  a  right  of  access  to  the  way  at  any  other  than 
the  accustomed  spot  of  entry  ;  but  if,  on  the  other  hand,  the 
right  of  way  has  originated  in  an  actual  grant,  and  the  grant 
can  be  produced,  the  right  must  be  determined  by  the  words 
of  the  deed,  and  it  will  not  be  presumed  that  the  grantor  in- 
tended it  to  be  at  the  option  of  his  grantee  to  enter  the  way 
at  any  other  place  than  he  himself  specified  in  the  deed. 
Dedication  of  a  way  to  the  public  is  very  different  from  a 
grant  of  a  private  way,  for  a  right  of  way  so  given  is  not  ap- 
purtenant to  land,  and  the  public  has  a  right  to  walk  in  every 
part  of  the  way,  and  over  it  to  any  place  to  which  it  leads ' 
it  does  not  moreover  originate  in  a  grant ;  if,  therefore,  an 

»  Gayford  v.  Moffatt,  L.  R.  4  Ch.  App,  133. 

J  5  Taunt,  at  p.  132;  Berridge  t;.  Ward,  2  F.  &  F.  208;  Marshall  v. 
Ulleswater  Steam  Navigation  Co.  L.  li.  7  Q.  B.  166;  41  L.  J.  Q.  B.  41. 


WAYS.  321 

owner  of  a  field  abutting  on  a  public  way  chooses  to  open  a 
new  gate,  he  has  perfect  right,  being  one  of  the  public,  to 
walk  to  and  from  that  gate  or  point  in  the  highway,  just  as 
he  has  to  walk  to  or  from  any  other  spot  on  the  road. 

By  deed  the  grantor  of  a  private  way  may  give  to  the 
grantee  a  right  not  only  to  enter  the  way  at  the  accustomed 
place,  but  also  at  any  other  spot  if  it  suits  his  purpose,  and 
this  may  be  done  by  express  provision  in  the  deed  or  by  im- 
plication. Thus,  in  the  case  of  The  South  Metropolitan 
Cemetery  Company  v.  Eden  *  it  was  said,  though  it  was  not 
necessary  to  determine  the  point  for  the  purpose  of  the  case, 
that  under  a  grant  of  a  way  to  certain  lands  or  any  part 
thereof^  the  grantee  was  entitled  to  block  up  the  existing  gates 
and  open  others  at  any  fresh  place  in  the  border  of  the  land. 
But,  on  the  other  hand,  a  grant  of  a  field,  together  ivitli  all 
ways  to  the  fields  or  any  part  or  'parts  thereof  belonging  or  in 
ayiywise  appertainiyig  or  usually  held,  occupied,  or  enjoyed 
therewith,  does  not  authorize  the  grantee  to  stop  up  an  exist- 
ing gate  leading  from  the  field  to  the  way  and  open  another 
at  a  fresh  place.' 

A  right  of  way  appurtenant  to  a  dominant  tenement  can 
be  used  only  for  the  purpose  of  passing  to  or  from   Rights  of 
that  tenement.!     It   cannot   be   used   even   by  the   ustVoniy 
dominant  owner  for  any  purpose  unconnected  with   "^  connec- 
the  enjoyment  of  the  dominant  tenement,  neither  can   the  domi- 
it  be  assigned  by  him  to  a  stranger  and  so  be  made  a   ment. 
right  in  gross,  nor  can  he  license  a  stranger  to  use  the  way 
when  he  is  not  coming  to  or  from  the  dominant  tenement. 
These  principles  were  determined  in  the  case  of  Ackroyd  v. 
Smith,™  which  is  the  leading  case  on  this  subject.     The  ac- 

^  16  C.  B.  42. 

'  Henning  v.  Burnet,  8  Exch.  187;  22  L.  J.  Exch.  79. 

1  Stearns  v.  Mullen,  4  Gray,  151;  Smith  v.  Porter,  10  Gray,  66.  In  the 
latter  case  a  conveyance  of  land  by  A.  to  B.,  "  with  liberty  to  pass  over 
my  land  where  it  is  necessary,"  was  held  to  give  only  a  right  of  way  to 
lands  then  owned  by  the  grantee,  and  not  to  any  he  might  subsequently 
acquire. 

™  10  C.  B.  164;  19  L.  J.  C.  P.  315.  In  Skull  v.  Glenister,  16  C.  B.  N. 
S.  81;  33  L.  J.  C.  P.  185,  Erie,  C.  J.,  said,  "  This  right  of  way  was  ap- 
21 


322  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

tion  was  for  trespass,  and  for  the  defence  a  right  of  way  to 
certain  land  of  the  defendants  was  set  up,  the  plea  alleging 
that  the  defendants  having  occasion  for  their  own  purposes  to 
use  the  way,  passed  over  the  place  where  the  right  existed, 
for  the  purposes  of  them,  the  defetidants.  To  this  plea  there 
was  a  special  demurrer,  assigning  for  cause  (among  other 
things)  that  the  defendants  had  not  alleged  that  the  trespasses 
were  committed  in  passing  and  repassing  to  and  from  the 
above-mentioned  land — that  is,  to  and  from  the  dominant 
tenement,  but  in  passing  and  repassing  for  the  purposes  of  the 
defendants  generally,  thereby  claiming  a  more  extensive  right 
than  that  to  which  they  were  entitled.  The  material  parts  of 
the  judgment  of  the  Court  of  Common  Pleas  were  as  fol- 
lows :  "  In  support  of  the  demurrer  it  was  contended,  first, 
that  the  road  granted  was  only  for  purposes  connected  with 
the  occupation  of  the  land  conveyed,  and  therefore  was  not 
sufficient  to  support  the  justification  pleaded ;  and  secondly, 
that  if  the  grant  was  more  ample  and  gave  to  the  grantee  a 
right  of  using  the  road  for  all  purposes,  although  they  might 
not  be  in  any  way  connected  with  the  enjoyment  of  the  land, 
it  would  not  pass  to  an  assignee  of  the  land,  and  therefore 
the  defendants  could  not  claim  it  under  a  conveyance  of  the 
land  with  the  appurtenances.  On  the  other  hand,  it  was  con- 
tended that  the  right  created  by  deed  might  be  assigned  by 
deed,  together  with  the  land,  and  was  large  enough  to  main- 
tain the  justification  pleaded.  Upon  consideration  we  have 
come  to  the  conclusion  that  the  plaintiff  is  entitled  to  our 
judgment  on  the  demurrer.  If  the  right  conferred  by  the 
deed  set  out  was  only  to  use  the  road  in  question  for  purposes 
connected  with  the  occupation  of  the  land  conveyed,  it  does 
not  justify  the  acts  confessed  by  the  plea  ;  but  if  the  grant 
was  more  ample  and  extended  to  using  the  road  for  purposes 
unconnected  with  the  enjoyment  of  the  land  (and  this,  we 
think,  was  the  true  construction  of  it),  it  becomes  necessary 
to  decide  whether  the  assignee  of  the  land  and  appurtenances 

purtenant  to  the  land  demised  by  the  Wheelers  to  the  defendants.  The 
defendants  are  therefore  bound  to  make  use  of  this  way  for  purposes  ex- 
clusively connected  with  their  holding  of  these  demised  premises." 


WAYS.  323 

would  be  entitled  to  it.  In  the  case  of  Keppell  v.  Bailey"  the 
subject  of  covenants  running  with  the  land  was  fully  consid- 
ered by  Lord  Chancellor  Brougham,  and  the  leading  cases  on 
the  subject  are  collected  in  his  judgment.  He  there  says,  at 
page  537,  '  The  covenant  (that  is,  such  as  will  run  with  the 
land)  must  be  of  such  a  nature  as  to  inhere  in  the  land,''  to 
use  the  language  of  some  cases,  or  it  '  must  concern  the  de- 
mised premises,  and  the  mode  of  occupying  them,'  as  is  laid 
down  in  others  ;  '  it  must  be  quodammodo  annexed  and  ap- 
purtenant to  them,'  as  one  authority  has  it,  or  as  another  says, 
'  it  must  both  concern  the  thing  demised  and  tend  to  support 
it,  and  support  the  reversioner's  estate.'  Now  the  privilege 
or  right  in  question  does  not  inhere  in  the  land,  does  not  con- 
cern the  premises  conveyed,  or  the  mode  of  occupying  them. 
A  covenant,  therefore,  that  such  a  right  should  be  enjoyed 
would  not  run  with  the  land.  Upon  the  same  principle  it 
appears  to  us  that  such  a  right  unconnected  with  the  enjoy- 
ment or  occupation  of  land  cannot  be  annexed  as  an  incident 
to  it,  nor  can  a  way  appendant  to  a  house  or  land  be  granted 
away  or  made  in  gross  ;  for  no  one  can  have  such  a  way  but 
he  who  has  the  land  to  which  it  is  appendant.  Bro.  Abr. 
tit.  Graunt,  pi.  130.  '  If  a  way  is  granted  in  gross,  it  is  per- 
sonal only,  and  cannot  be  assigned.'  .  .  .  .  '  So  common  in 
gross  sans  nomhre  may  be  granted,  but  cannot  be  granted 
over.'  Per  Chief  Justice  Treby  in  Weekly  v.  Wildman.  It 
is  not  in  the  power  of  a  vendor  to  create  any  rights  not  con- 
nected with  the  use  or  enjoyment  of  the  land  and  annex  them 
to  it,  nor  can  the  owner  of  land  render  it  subject  to  a  new 
species  of  burden  so  as  to  bind  it  in  the  hands  of  an  assignee. 
'  Incidents  of  a  novel  kind  cannot  be  devised  and  attached  to 
property  at  the  fancy  or  caprice  of  any  owner.'  Per  Lord 
Brougham  in  Keppell  v.  Bailey.  This  principle  is  sufficient 
to  dispose  of  the  present  case.  It  would  be  a  novel  incident 
attached  to  land  that  the  owner  and  occupier  should,  for  pur- 
poses wholly  unconnected  with  that  land,  and  merely  because 
he  is  the  owner  and  occupier,  have  a  right  of  road  over  other 
land ;  and  it  seems  to  us  that  a  grant  of  such  a  privilege  or 
»  2  Myl.  &  K.  517.     See  Bronson  y.  Coffin,  108  Mass.  175. 


324      EXTENT  AND  MODE  OF  USER  OF  EASEMENTS. 

easement  can  no  more  be  annexed  so  as  to  pass  with  the  land 
than  a  covenant  for  any  collateral  matter.  The  defendants, 
therefore,  as  assignees,  cannot  avail  themselves  of  the  grant 
to  John  Smith,  and  our  judgment  must  be  for  the  plaintiff." 

As,  then,  a  right  of  way  appurtenant  to  a  tenement  can 
The  occu-  be  used  only  in  connection  with  that  tenement,  and 
dominant  cannot  be  made  a  right  in  gross  by  assignment,  it 
*^°d  hJs"ii-  follows  that  the  occupier  of  the  tenement,  and  his 
censees,        licensees  who  desire  to  pass  to  or  from  that  tene- 

alone  to  i      ,    <•       .  i  • 

use  a  way.  ment,  can  alone  use  the  way  ;  but  for  this  purpose 
the  owner  of  a  tenement  is  considered  the  occupier,  notwith- 
standing he  has  let  it  to  a  tenant,  and  is  therefore  not  actually 
in  occupation ;  and  he  may  use  a  way  appurtenant  for  any 
ordinary  purposes  connected  with  occupation  of  the  tenement 
—  as,  for  instance,  for  the  purpose  of  collecting  his  rent,  and 
seeing  that  the  premises  are  kept  in  repair.** 

The  dominant  owner  having  only  this  limited  right  of  using 
User  of  his  way,  is  not  entitled  to  use  it  for  going  to  the 
piace^b^-  dominant  tenement  and  thence  to  some  other  place 
vend  the  beyond,  if  the  going  to  the  latter  spot  was  the  sub- 
quem.  stautial  purposc  of  his  journey,  for  he  would  then  in 

effect  be  using  the  way  for  passing  to  some  other  place  than 
the  dominant  tenement,  and  he  would  be  imposing  a  greater 
burden  on  the  servient  estate  than  was  intended  by  the 
grantor  of  the  easement.^  He  may  not,  therefore,  make  a 
mere  colorable  use  of  the  dominant  tenement  so  as  to  make 
it  appear  that  the  object  of  using  the  way  was  to  go  there, 
when,  in  fact,  his  intention  was  afterwards  to  go  to  a  different 
place.  Thus,  in  the  case  of  Skull  v.  Glenister,^  an  owner  of 
land  was  entitled  to  a  right  of  way  through  a  lane  from  a 
highway,  and  he  was  possessed  of  ground  adjoining  the  dom'i- 
nant  tenement,  on  which  he  was  building  a  number  of  cot- 
tages.   In  order  to  get  the  benefit  of  the  lane  for  carrying  the 

o  Hollis  I'.  Proud,  1  B.  &  C.  8. 

p  Lawton  v.  Ward,  1  Ld.  Raym,  75;  Howell  v.  King  1  Mod.  190;  Col- 
chester V.  Roberts,  4  M.  &  W.  769;  8  L.  J.  N.  S.  Exch.  195. 

«  16  C.  B.  N.  S.  81;  33  L.  J.  C.  P.  185  ;  Williams  v.  James,  L.  K.  2 
C.  P.  577;  36  L.J.  C.  P.  256. 


WAYS.  325 

building  materials  to  the  ground  on  whicli  the  cottages  were 
being  built,  he  carried  them  first  to  the  land  to  which  the 
right  of  way  was  appurtenant,  and  having  deposited  them 
there,  subsequently  moved  them  to  the  land  on  which  he  was 
building.  In  the  action  it  was  held  that  he  was  not  entitled, 
by  making  this  mere  colorable  use  of  the  dominant  tenement, 
to  carry  the  building  materials  over  the  way ;  and  that  it  was 
for  the  jury  to  say,  from  the  character  of  the  defendant's 
acts,  what  was  the  intention  with  which  those  acts  were  done. 

This  point  was  much  considered  in  an  early  case  in  Massa- 
chusetts.^ The  defendant  having  a  right  by  deed  to  pass  from 
a  three-acre  lot  over  land  of  the  plaintiff  to  the  highway,  also 
owned  a  nine-acre  lot  adjoining  the  other,  and  not  separated 
from  it  by  any  fence.  The  defendant  gathered  hay  growing 
on  both  lots,  and  carried  it  over  the  three- acre  lot,  and  this 
was  held  an  abuse  of  his  right,  rendering  him  liable  in  tres- 
pass quare  clausum  for  such  excess.     The  facts  were  these : 

By  the  division  of  a  farm  among  part  owners,  the  defen- 
dant became  entitled  to  a  right  of  way,  as  appurtenant  to  a 
three-acre  lot,  in  and  over  the  locus  in  quo,  which,  before  the 
partition,  was  part  of  the  same  tenement.  The  defendant  be- 
came possessed  of  another  lot  of  nine  acres,  adjoining  to  and 
beyond  the  three-acre  lot,  by  another  title,  which  nine-acre 
lot  was  never  a  part  of  the  same  farm  with  the  locus  171  quo 
belonging  to  the  plaintiff.  It  further  appeared  that  between 
the  nine-acre  lot  and  the  three-acre  lot,  belonging  to  the  de- 
fendant, there  were  no  fences,  and,  being  mowing  land,  the 
grass  was  cut  and  the  hay  made  on  both,  without  regard  to 
the  dividing  line,  the  hay  laid  in  windrows  extending  across 
both,  and  a  load  of  hay  taken  partly  from  one  and  partly 
from  the  other  was  driven  across  the  plaintiff's  close,  passing 
last  from  the  three-acre  lot.  And  the  question  was,  whether 
the  defendant  was  justified  in  so  using  the  plaintiff's  land  ; 
and  the  court  were  of  opinion  that  he  was  not.  "  He  had," 
said  Shaw,  C.  J.,  "  a  special  right  of  way  for  going  to  and 

1  Davenport  v.  Lamson,  21  Pick.  72  (1838);  approved  in  Cotton  r.  Po- 
casset  Man.  Co.  13  Met.  433.  And  see  New  York  Life  Ins.  and  Trust  Co. 
V.  Milnor,  1  Barb.  Ch.  353. 


326  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

from  the  three-acre  close  ;  and  it  would  not  be  consistent  with 
the  terms  of  this  grant  to  use  the  right  of  way  to  other  closes 
beyond  the  three-acre  close. 

"  The  rule  seems  to  be  well  settled  by  the  authorities,  that 
if  a  man  have  a  right  of  way  over  another's  land,  to  a  partic- 
ular close,  he  cannot  enlarge  it  and  extend  it  to  other  closes. 
Com.  Dig.  Chimin,  D.  5  ;  Senhouse  v.  Christian,  1  T.  R.  569  ; 
Howell  V.  King,  1  Mod.  190  ;  Woolrych  on  Ways,  34.  I  do 
not  consider  this  case  as  deciding,  that  where  there  is  a  right 
of  way  to  a  close  for  all  purposes,  and  for  all  carriages,  the 
owner  of  the  close  is  bound  to  limit  the  use  of  it,  and  of  his 
right  of  way,  to  the  same  purposes  to  which  it  was  used  be- 
fore the  grant,  where  there  is  no  restriction  in  the  terms  of 
the  grant.  For  instance,  if  the  close,  to  which  the  private 
right  of  way  is  made  appurtenant,  has  before  the  grant  been 
used  for  agricultural  purposes,  and  the  apparent  object  of  the 
way  is  to  enable  the  owner  to  get  off  the  produce,  or  to  pass 
to  and  from  it  with  teams,  cattle,  and  carriages  for  the  pur- 
poses of  cultivation  and  pasturage.  I  do  not  consider  this 
case  as  determining  that  he  would  not  have  a  right,  there  be- 
ing no  restriction  in  the  grant,  to  build  a  house,  barn,  and  out- 
houses on  the  close,  and  to  use  the  way  for  all  purposes  prop- 
erly incident  to  the  use  and  enjoyment  of  such  house  and 
buildings.  The  case  goes  to  this  extent  only,  that  the  de- 
fendant, having  a  right  of  way,  as  appurtenant  to  a  three-acre 
lot,  could  not  use  it  as  a  right  of  way  to  and  from  the  nine- 
acre  lot,  which  lay  beyond  the  three-acre  lot,  and  that  throw- 
ing the  whole  into  one  close,  by  the  removal  of  the  fences, 
and  using  it  as  one  entire  close,  and  taking  the  hay  from  one 
and  the  other  part  indiscriminately,  was  in  effect  using  it  as 
a  way  to  and  from  the  nine-acre  lot,  although  the  cart  passed 
last  from  the  three-acre  lot  on  to  the  plaintiff's  close,  and 
that  such  use  of  the  plaintiff's  land  was  beyond  the  limit  of 
the  right  reserved  and  not  justified." 

On  the  other  hand,  in  a  somewhat  similar  case  of  Williams 
V.  James,^  a  very  different  result  was  arrived  at.     There  the 

^  L.  R.  2  C.  P.  577.  And  see  French  v.  Marstin,  24  N.  H.  440,  for 
similar  views,  though  questions  of  pleading  were  also  involved. 


WAYS.  327 

defendant  by  immemorial  user  had  a  right  of  way  from  a  nine- 
acre  lot  over  plaintiff's  land  to  the  highway,  and  also  owned 
an  adjoining  lot,  called  Parrott's  land,  and  mowed  both  lots 
and  stacked  the  hay  on  the  nine-acre  lot,  from  which  it  was 
all  afterwards  carted  over  the  plaintiff's  land.  The  jury 
found  that  the  stacking  of  tlie  hay  on  the  nine-acre  lot  was 
done  honestly,  and  not  with  intent  to  get  a  way  to  the  Parrott 
lot,  and  that  there  was  no  excess  of  user,  apart  from  carting 
the  hay  grown  also  on  the  Parrott  lot ;  and  it  was  held  that 
upon  this  finding  the  defendant  was  entitled  to  judgment ; 
it  being  considered  a  question  of  fact,  rather  than  of  law, 
whether  the  defendant  had  made  a  fair  and  reasonable  use  of 
his  right  of  way.  The  main  apparent  distinction  between 
these  two  cases  seems  to  be  that  in  Davenport  v.  Lamson  the 
right  arose  by  deed,  which  in  terms  related  only  to  the  first 
lot,  while  in  William  v.  James  the  right  rested  on  prescrip- 
tive use,  but  as  there  was  no  evidence  of  any  prior  use  except 
to  the  first  lot,  it  is  not  easy  to  see  how  the  right  could  be 
any  more  extensive  than  if  it  depended  on  grant.  Bovill,  C. 
J.,  thus  supported  the  decision  :  "  In  all  cases  of  this  kind, 
which  depend  upon  user,  the  right  acquired  must  be  measured 
by  the  extent  of  the  enjoyment  which  is  proved.  When  a 
right  of  way  to  a  piece  of  land  is  proved,  then  that  is,  unless 
something  appears  to  the  contrary,  a  right  of  way  for  all  pur- 
poses according  to  the  ordinary  and  reasonable  use  to  which 
that  land  might  be  applied  at  the  time  of  the  supposed  grant. 
Such  a  right  cannot  be  increased  so  as  to  affect  the  servient 
tenement  by  imposing  upon  it  any  additional  burden.  It  is 
also  clear,  according  to  the  authorities,  that  where  a  person 
has  a  right  of  way  over  one  piece  of  land  to  another  piece  of 
land,  he  can  only  use  such  right  in  order  to  reach  the  latter 
place.  He  cannot  use  it  for  the  purpose  of  going  elsewhere. 
In  most  cases  of  this  sort  the  question  has  been  whether  there 
was  a  bond  fide  or  a  mere  colorable  use  of  the  right  of  way. 
That  was  the  question  in  Skull  v.  Glenister,  and  on  which  the 
case  was  ultimately  decided.  This  question  is  excluded  here 
by  the  finding  of  the  jury. 

"  With  respect  to  the  purposes  for  which  the  land  was  used. 


828      EXTENT  AND  MODE  OF  USER  OF  EASEMENTS. 

it  is  agreed  on  both  sides  that  that  question  was  raised  and 
discussed  at  the  trial,  and  the  question  whether  there  had  been 
any  excess  in  the  user  of  the  right  of  way,  and  also  the  ques- 
tion of  the  bona  fides  of  Jenkins  in  stacking  the  hay,  were  left 
to  the  jury.  The  question,  therefore,  of  what  was  the  ordi- 
nary and  reasonable  use  of  the  land,  was  practically  left  to 
the  jury.  They  found  that  Jenkins  acted  honestly,  and  that 
is  equivalent  to  finding  that  what  had  been  done  Avas  done  in 
the  ordinary  and  reasonable  use  of  the  land  to  which  the 
right  of  way  was  claimed,  and  in  the  ordinary  and  reasonable 
use  of  the  right  of  way  itself.  It  was  for  the  plaintiff  to 
show  that  there  had  been  some  excess  of  user  on  the  part  of 
the  defendant,  as  by  showing  that  the  user  of  the  right  of 
way  was  only  colorable,  or  that  the  nine-acre  field  was  used 
for  purposes  other  than  those  included  in  the  ordinar}^  and 
reasonable  use  of  the  land.  The  finding  of  the  jury  excludes 
both  these  questions.  In  considering  the  matters  submitted 
to  them  the  jury  must  have  had  to  consider  whether  any  ad- 
ditional burden  had  been  cast  upon  the  servient  tenement. 
This  was  a  necessary  element  for  them  to  take  into  consider- 
ation in  deciding  whether  there  had  been  only  an  ordinary 
and  reasonable  use  of  the  land  in  question.  If  no  additional 
burden  was  cast  upon  the  servient  tenement  the  jury  might 
well  find  that  there  had  been  only  the  ordinary  and  reason- 
able use  of  the  right  of  way." 

If  a  way  leads  to  a  highway,  and  not  merely  to  private 
ground,  a  somewhat  different  rule  of  law  prevails, 
way  to  a  for  when  a  person  is  on  a  highway,  he  has  full  right* 
ig  way.  ^^  ^^^^  ^^  ^-^^  public,  to  go  to  any  place  to  which  the 
highway  leads  ;  if,  therefore,  a  highway  is  one  of  the  termini 
of  a  private  way,  and  the  dominant  owner  has  a  right  of  way 
to  the  highway,  he  may  use  his  easement  for  the  purpose  of 
going  to  the  highway,  and  then  he  may  proceed  elsewhere  at 
his  pleasure  —  not  by  virtue  of  his  easement,  but  under  his 
right  as  one  of  the  public.'' 

The  question  often  arises  whether  the  grantor  of  a  right  of 
way  has  a  right  to  build  over  or  cover  the  space  of  the  way, 
»•  Colchester  v.  Roberts,  4  M.  &  W.  769;  8  L.  J.  N.  S.  Exch.  195. 


WAYS.  329 

the  effect  of  which  may  be  to  darken  the  way,  and  perhaps 
obstruct  the  passage  of  some  kinds  of  vehicles  or  ^^^^ 
loads.  But  obviously  this  may  depend  upon  the  par-  build  over 
ticular  terms  or  purpose  of  the  grant.  Thus,  in  At- 
kins V.  Bordman,^  the  grant  or  reservation  was  of  a  "  passage- 
way about  five  feet  wide "  leading  from  a  public  street  in 
Boston,  into  a  backyard,  with  "  free  liberty  of  ingress,  egress, 
and  regress  through  and  upon  said  gate  or  passage-way  for  car- 
rying  wood  or  any  other  thing  through  the  same,  and  over  the 
yard  or  ground  of  the  messuage  granted,  into,  and  from  the 
land  of  the  grantor  for  •  the  use  and  accommodation  thereof, 
without  damnifying  or  annoying  thereby  the  said  grantee,  his 
heirs,  or  assigns  ;  "  and  it  was  held  that  under  this  particular 
form  or  extent  of  the  clause  reserving  the  way,  the  owner  of 
the  land  might  lawfully  cover  such  passage-way  with  a  build- 
ing if  he  left  a  space  so  high,  wide,  and  light,  that  the  passage- 
way was  substantially  as  convenient  as  before,  for  the  purposes 
for  which  it  was  reserved  ;  but  this  decision  was  apparently 
founded  upon  the  peculiar  kind  of  a  way  involved  in  that  case  ; 
for  Shaw,  C.  J.,  says  : 

"  When  no  dimensions  of  a  way  are  expressed,  but  the  ob- 
ject is  expi-essed,  the  dimensions  must  be  inferred  to  be  such 
as  are  reasonably  sufficient  for  the  accomplishment  of  that 
object.  In  the  present  case,  the  dimensions  of  the  way  are 
not  expressed  ;  but  the  purpose  for  which  it  was  reserved  is 
expressed,  and  it  goes  far  to  enable  us  to  ascertain  the  dimen- 
sions. It  was  for  the  purpose  of  carrying  wood,  or  any  other 
thing,  into  and  from  the  grantor's  "  housing  and  land  adjoin- 
ing, for  the  use  and  accommodation  thereof."  The  grantor's 
adjoining  house,  being  a  dwelling-house,  it  is  to  be  limited  to 
articles  usually  carried  to  or  from  a  dwelling-house,  in  its  or- 
dinary occupation  as  such.  It  thereby  excludes  the  presump- 
tion that  it  was  to  be  adapted  to  the  carriage  of  merchandise, 
such  as  bales,  boxes,  or  casks.  "  Wood  "  must  be  taken  to  be 
fire-wood,  and  not  timber  or  wood  to  be  used  for  the  purposes 
of  manufacturing.     And  "  any  other  thing,"  though  in  terms 

1  2  Met.  457.  And  see  prior  case  between  the  same  parties,  20  Pick. 
291. 


330  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

of  the  largest  sense,  must  be  construed  to  mean  other  things 
of  like  kind  used  in  a  dwelling-house  ;  as  vegetables,  provi- 
sions, furnitur  ,  and  the  like. 

Without  examining  it  more  minutely,  we  are  satisfied  that 
the  right  reserved  was  that  of  a  suitable  and  convenient  foot- 
way to  and  from  the  grantor's  dwelling-house,  of  suitable 
height  and  dimensions  to  carry  in  and  out  furniture,  provi- 
sions, and  necessaries  for  family  use,  and  to  use  for  that  pur- 
pose wheelbarrows,  hand-sleds,  and  such  small  vehicles  as  are 
commonly  used  for  that  purpose,  in  passing  to  and  from  the 
street  to  the  dwelling  in  the  rear,  through  a  foot  passage,  in  a 
closely  built  and  thick  y  se    led  town." 

On  the  other  hand,  in  Salisbury  v.  Andrews,  in  the  same 
court,^  where  tenants  in  common  of  a  tract  of  land  on  the 
east  side  of  Washington  Street,  Boston,  with  a  court  called 
"  Central  Court,"  l<  ading  out  of  Washington  Street,  and  with 
high  brick  buildings  erected  on  each  side  of  said  court  divided 
their  estate  between  them,  but  mutually  agreed  that  all  that 
part  not  set  off  to  either  "  should  be  left  and  always  lie  open 
for  the  passage-way  or  court  aforesaid^  for  the  use  and  benefit 
of  both  parties  and  their  respective  estates,"  it  was  held  that 
the  "  court "  mentioned  in  said  deed  must  remain  open  and 
uncovered  for  its  entire  length,  and  that  an  injunction  would 
lie  against  one  party  or  his  assigns  for  building  a  bridge  over 
said  court  at  one  place  connecting  the  buildings  on  each  side, 
by  which  another  pa  t  of  said  estate  on  said  court  belonging 
to  the  other  party  or  his  assigns  was  seriously  incommoded. 

Questions  often  arise  whether  the  owner  of  a  private  way 
Gates  and  through  another's  land  has  a  right  to  an  entirely  free 
private  ^^^  open  way  the  whole  distance,  or  whether  the 
ways.  landowner  may  lawfully  erect  gates  or  bars  at  the 

termini  of  the  way,  either  w  if  e  it  enters  the  highway  or  at 
the  opposite  end.  Obviously,  the  burden  on  the  owner  of  the 
servient  estate  is  much  greater,  if  he  must  either  leave  the  way 
entirely  open  for  the  inroads  (  f  (  thers'  beasts,  and  the  escape 
of  his  own,  or  else  fence  both  sides  of  the  way  for  its  entire 

1  Not  yet  reported,  but  probably  to  be  in  1 28  Mass.  And  see  Salisbury 
V.  Aiiuicvv,,  19  Pick.  255;  Richardson  v.  Pond,  15  Gray,  387. 


WAYS.  331 

length.  On  tlie  other  hand,  the  use  of  the  way  to  the  owner 
thereof  is  not  so  convenient,  if  he  must  delay  to  open  and 
close  gates,  or  remove  and  replace  bars.  When  ways  are 
created  by  express  grant,  this  matter  is  frequently  provided 
for  by  the  grant  itself.^ 

But  in  cases  of  a  general  grant,  express  or  implied,  or  of 
necessity,  the  rule  seems  to  be  that  gates  or  bars  may  be  law- 
fully erected  at  the  termini  of  such  ways  without  any  liability 
for  obstructing  the  way,  and  the  way-owner  would  be  liable 
in  trespass  for  wrongfully  removing  the  same.^  The  great 
preponderance  of  convenience  to  the  landowner  over  the 
slight  inconvenience  to  the  way-owner,  seems  to  make  it 
"  reasonable  "  in  the  eye  of  the  law  that  such  should  be  the 
rule.  And  if  the  landowner  may  rightfully  erect  and  con- 
tinue such  quasi  obstruction  withou^  any  liability,  it  seems  to 
follow  that  the  way-owner  must  duly  i  eplace  the  same  after 
he  has  passed ;  and  if  damage  ensue  for  his  neglect  of  this 
dut}^  he  would  be  liable  to  the  landowner  therefor.* 

This  burden  on  the  way-owner  would,  of  course,  be  much 
increased,  if  the  landowner  might  erect  such  gates  and  bars, 
not  only  at  the  termini  of  the  way,  but  also  wherever  it 
passed  through  his  adjoining  lots  separated  from  each  other 
by  a  fence.  This  point  does  not  seem  to  have  been  judicially 
settled,  but  apparently  it  would  be  governed  by  the  same 
principles  as  before,  viz.,  was  it  reasonable  under  all  the  cir- 
cumstances to  have  so  many  gates  and  bars  on  such  a  way  ; 
a  practical  question  always  for  the  jury.* 

If  he  way  has  been  gained  by  prescription.,  and  no  gates 
or  bars  have  ever  been  erected  durin  ;  the  requisite  term,  it 
would  seem  from  the  analogies  of  the  law  that  none  can  after- 

1  As  in  Russell  v.  Jackson,  2  Pick.  574. 

2  Maxwell  v.  McAtee,  9  B.  Monr.  20,  is  directly  in  point,  the  gate  there' 
being  situated  at  termini  of  way.  And  see  Bean  v.  Coleman,  44  N.  H. 
646;  Garland  v.  Furber,  47  N.  H.  301;  Huson  v.  Young,  4  Lans.  64; 
Houpes  V.  Alderson,  22  Iowa,  161;  Bakeman  v.  Talbot,  31  N.  Y.  366; 
Baker  v.  Frick,  45  Md.  337,  a  recent  and  valuable  case. 

8  See  Bean  v.  Coleman,  44  N.  H.  at  p.  546. 

*  See  Huson  v.  Young,  4  Lans.  64;  Baker  v.  Frick,  45  Md.  337. 


332      EXTENT  AND  MODE  OF  USER  OF  EASEMENTS. 

wards  be  erected,  since  the  extent  of  the  use  is  the  measure 
of  the  right. 

It  may  be  mentioned  here,  that  a  right  of  way  along  a 
Decreasing  private  road  belonging  to  another  person,  does  not 
orpri'vate  S^^®  ^^®  dominant  owner  a  right  that  the  road  shall 
ways.  in  no  respect  be  altered,  or  the  width  decreased  ;  for 

his  right  does  not  entitle  him  to  the  use  of  the  whole  of  the 
road,  unless  the  whole  width  of  the  road  is  necessary  for  his 
purpose  ;  but  it  is  merely  a  right  to  pass  with  the  conven- 
ience to  which  he  has  been  accustomed  ;  the  right,  therefore, 
merely  extends  to  that  portion  of  the  centre  of  the  road 
which  is  necessary  for  the  due  exercise  of  the  right  of  pas- 
sage.* The  only  obligation  upon  the  servient  owner  is,  that 
he  shall  not  unreasonably  contract  the  width  of  the  road,  or 
render  the  exercise  of  the  right  of  passing  substantially  less 
easy  than  it  was  at  the  time  of  the  grant.'  And  even  where 
a  right  of  way  was  granted  over  certain  roads  marked  on  a 
plan,  and  one  was  described  there  as  forty  feet  wide,  it  was 
held  that  the  gi'antee  was  entitled  to  only  a  reasonable  enjoy- 
ment'of  a  right  of  way,'  and  that  such  reasonable  enjoyment 
was  not  interfered  with  by  the  erection  of  a  portico  which  ex- 
tended a  short  distance  into  the  road  so  as  to  reduce  it  at  that 
point  to  somewhat  less  than  forty  feet." 

*  Hutton  V.  Hamboro,  2  F.  &  F.  218.  There  is  a  difference  in  this  re- 
spect between  public  and  private  rights  of  way.  In  the  case  of  Reg.  v. 
The  United  Kingdom  Electric  Telegraph  Co.  (3  F.  &  F.  73;  31  L.  J.  M. 
C.  166)  Martin,  B.,  said:  "  In  the  case  of  an  ordinary  liighway,  although 
it  may  be  of  a  varying  and  unequal  width,  running  between  fences,  one 
on  each  side,  the  right  of  passage  or  way,  prima  facie,  and  unless  there 
be  evidence  to  the  contrary,  extends  to  the  whole  space  between  the  fences; 
and  the  public  are  entitled  to  the  use  of  the  entire  of  it  as  the  highway, 
and  are  not  confined  to  the  jiart  which  may  be  metalled  or  kept  in  order 
for  the  more  convenient  use  of  carriages  and  foot-jiassengers."  And  this 
was  approved  by  the  full  court. 

'Hawkins  v.  Carbines,  3  H.  &  N.  914;  27  L.  J.  Exch.  44;  Selby  v. 
Nettlefold,  L.  R.  9  Ch.  App.  Ill ;  43  L.  J.  Ch.  359, 

«  Clifford  V.  Hoare,  L.  R.  9  C.  P.  362;  43  L.  J.  C.  P.  225. 


WAYS.  333 


THE    AMERICAN   RULE 

on  this  subject  seems  to  be  that  if  the  way  granted  is  not  spe- 
cifically defined^  but  only  "  a  right  of  way "  is  given,  the 
way  in  point  of  width  need  be  only  such  as  is  reasonably  nec- 
essary and  convenient  for  the  purpose  for  which  it  was 
granted  ;  and  therefore,  although  in  fact  a  broad  way  had 
been  used  by  the  grantor,  yet  the  grantor  might  subsequently 
narrow  it,  or  build  upon  it,  so  long  as  he  left  a  way  remain- 
ing of  sufficient  width  and  convenience  for  the  grantee's  le- 
gitimate use.  Thus,  in  Atkins  v.  Bordman,i  the  owner  of 
two  adjoining  messuages  fronting  easterly,  situated  on  the 
west  side  of  Washington  Street,  Boston,  in  1703  conveyed 
the  southerly  one  by  a  deed,  in  which,  after  stating  that  on 
the  southerly  side  of  the  messuage  granted  "  there  is  a  gate 
and  passage-way  of  about  five  feet  wide  leading  from  the 
street  into  the  yard  of  the  said  messuage,"  the  grantor  "re- 
serves unto  himself,  his  heirs  and  assigns  forever,  free  liberty 
of  ingress,  egress,  and  regress,  through  and  upon  said  gate 
or  passage-way,  for  carrying  and  re-carrying  wood  or  any 
other  thing  through  the  same  and  over  the  yard  or  ground  of 
the  said  messuage  hereby  granted,  into  and  from  the  housing 
and  land  of  the  grantor  for  the  use  and  accommodation  thereof, 
without  damnifying  or  annoying  thereby  the  grantee,  his  heirs 
or  assigns.  And  it  is  mutually  agreed  that  whensoever  the 
grantee,  his  heirs  or  assigns,  are  minded  to  make  or  add  any 
addition  of  building  backward,  he  or  they  shall  only  make  the 
breadth  to  extend  equal  with  the  breadth  of  the  back  of  the 
chimneys  of  said  tenement  hereby  granted."  Many  years  af- 
terwards the  grantee  or  his  assigns  extended  said  building 
backward  several  feet,  by  which  the  grantor  was  compelled  to 
go  around  it,  and  about  six  feet  farther  west  than  he  had  for 
many  years  done  ;  and  the  grantee  also  narrowed  the  "  pas- 

1  20  Pick.  291;  and  see  2  Met.  457.  And  a  reservation  of  a  right  of 
way  over  land  granted  for  the  purpose  of  repairing  a  building  adjoining 
such  way,  on  other  land  of  the  grantor,  the  width  of  the  way  is  not  fixed, 
since  the  grantor  might  require  more  space  for  some  kinds  of  repairs  than 
others.     Phipps  v.  Johnson,  99  Mass.  26. 


334  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

sage-way  "  leading  in  from  Washington  Street,  to  the  width 
of  the  old  gate,  about /owr  feet,  but  it  was  held  that  although 
the  grantor,  assignee,  and  owner  of  the  northerly  messuage 
had  enjoyed  the  passage-way  as  it  origiyially  existed,  for  a  pe- 
riod long  enough  in  itself  to  give  a  prescriptive  title,  yet  that 
under  the  circumstances  that  use  must  be  deemed  to  have 
been  under  and  consonant  with  the  deed  and  reservation 
therein,  and  should  be  explained  and  limited  by  the  terms 
thereof ;  and  that  neither  under  the  terms  of  such  a  reserva- 
tion, nor  under  the  long  use,  did  the  grantor  or  his  assigns  ob- 
tain a  right  to  a  way  of  a  fixed  and  definite  width,  nor  of  an 
exact  and  unalterable  location,  and  that  it  was  sufficient,  if 
the  grantee  still  left  him  a  suitable  and  convenient  passage- 
way, substantially  as  convenient  as  before,  for  the  purpose  for 
which  it  was  reserved.  So  where  the  owner  of  a  block  of 
stores  and  of  land  adjoining  conveyed  a  part  of  the  land, 
bounding  it  by  a  line  parallel  with  the  building  and  twenty 
feet  from  the  same,  "  together  with  the  right  of  passing  and 
repassing  over  the  space  of  twenty  feet  between  the  west  wall 
of  the  store  aforesaid,  and  the  eastern  line  of  the  granted 
premises,"  it  was  held  that  this  did  not  necessarily  give  the 
grantee  a  right  to  pass  over  the  whole  twenty  feet,  but  only  to 
a  reasonable  and  convenient  way  within  those  limits,  and 
therefore  that  the  grantor  miglit  obstruct  or  use  some  part  of 
said  width,  so  long  as  he  left  sufficient  for  the  reasonable  uses 
of  the  grantor,  which  was  a  question  of  fact  for  a  jury.^ 

On  the  other  hand,  if  the  way  granted  is  defined  by  metes 
and  bounds,  or  described  as  of  a  given  width,  or  otherwise  de- 
fined, the  grantor  cannot  subsequently  narrow  the  way,  even 
though  he  should  have  a  sufficient  width  for  all  the  actual 
uses  of  the  grantee.  Such  a  rule  is  necessary  to  the  security  of 
both  parties  ;  to  the  grantee, 'to  insure  him  a  way  of  known 
width  and  dimensions,  the  sufficiency  of  which  he  may  judge 
of  before  he  closes  his  contract  for  the  purchase  ;  and  to 
the  grantor,  to  secure  him  against  the  claims  of  the  grantee  to 
an  indefinite  right  to  pass  over  his  premises.     And  Salisbury 

^  Johnson  v.  Kinnicutt,  2  Cusb.  153. 


WAYS.  335 

V.  Andrews^  is  a  leading  case,  illustrating  tliis  kind  of  ways. 
There  (eliminating  the  particulars  not  involved  in  this  exact 
point)  the  owner  of  land  on  Washington  Street,  Boston,  laid 
out  a  court  over  it  extending  from  Washington  Street  to  land 
in  the  rear  called  "  Central  Court,"  about  fifteen  feet  wide,  and 
having  laid  out  house  lots  on  each  side  of  said  court,  and  built 
two  houses  on  different  sides  thereof,  one  of  which  he  con- 
veyed, describing  it  as  "  a  brick  house  and  the  land  under  and 
adjoining  the  same,  being  No.  4  in  Central  Court,"  the  front 
boundary  of  the  land  being  on  a  line  with  the  front  of  the 
house,  "  with  a  right  to  pass  and  repass  on  foot  and  with 
horses  and  carriages  through  said  Central  Court  at  all  times," 
&c.  At  the  time  of  the  grant  the  shed  of  the  grantor's  other 
house  retained  by  him  formed  one  side  of  the  court,  and  the 
house  conveyed,  formed  the  other  side,  and  the  whole  space 
was  paved  with  brick.  It  was  held  (among  other  things)  that 
the  grant  in  this  particular  case  was  of  a  way  over  the  whole 
space  between  the  grantor's  shed  and  the  house  granted,  and 
not  merely  of  a  convenient  way  to  be  afterwards  defined,  and 
that  the  grantor  was  liable  for  subsequently  narrowing  the 
court  or  way  in  front  of  the  shed  and  elsewhere,  although  he 
had  widened  it  in  another  place,  and  perhaps  made  it  on  the 
whole  as  convenient  as  before.  On  the  same  principle,  if  A. 
grants  a  right  of  way  over  his  land,  "  as  now  laid  out,"  he 
would  not  have  a  right  to  narrow  the  way  as  it  in  fact  ex- 
isted at  the  time  of  his  grant,  not  even  to  insert  gate-posts 
and  hang  a  gate  thereon ;  in  the  absence  of  any  general  usage 
to  that  effect.2  Still  more  clearly,  if  the  grant  be  of  a  right 
"  to  a  street  forty  feet  wide,  and  in,  over,  and  through  said 
forty  feet  street,"  all  of  which  is  owned  by  the  grantor,  and 
between  his  lots,  and  is  so  situated  that  there  will  naturally 
be  much  passing  over  the  same,  the  grantee  acquires  a  right 
to  the  whole  width  of  forty  feet,  and  the  grantor  cannot  in- 
cumber or  narrow  any  part  of  it,^  even  though  it  may  not  all 
be  actually  needed  by  the  grantee  for  the  purposes  designed. 
And  this  doctrine  was  pushed  much  farther  in  a  recent  case 

1  19  Pick.  250.  2  Welch  v.  Wilcox,  101  Mass.  162. 

8  Tudor  Ice  Co.  v.  Cunningham,  8  Allen,  139. 


336  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

• 
in  Massachusetts. 1  There  the  owner  of  a  tract  of  land  laid 
it  out  into  streets  and  house  lots,  and  sold  the  lots  by  auction 
on  the  premises.  He  distributed  at  the  sale,  and  subsequently 
rec6rded  in  the  registry  of  deeds,  a  plan  on  which  the  lots 
and  streets  were  delineated,  and  to  which  the  deeds  referred. 
One  deed  bounded  the  land  conveyed  "  on  a  forty  feet  street 
laid  down  on  said  plan,  and  called  Youle  Street."  In  fact, 
the  street  as  shown  on  the  plan  was  at  one  end  wider  than 
forty  feet,  namely,  about  seventy  feet,  and  gradually  dimin- 
ishing to  forty  feet  before  it  reached  the  land  conveyed  ;  and 
it  was  held  that  the  delineation  of  the  plan  gave  the  grantee 
a  right  to  the  whole  width  of  Y.  Street  as  there  laid  down, 
and  that  the  grantor  could  not  narrow  the  end  therefrom  from 
seventy  feet  down  to  forty  feet.  And  conversely  if  the  width 
of  the  way  granted  is  definitely  fixed  and  stated  in  the  grant, 
the  grantee  is  not  entitled  to  a  wider  way,  even  though  the 
grantor  had  actually  located  a  wider  path,  and  which  at  the 
time  of  the  grant  was  defined  by  visible  objects.  Thus, 
where  the  owner  of  a  large  tract  of  land  fronting  upon  a  pub- 
lic highway,  sold  a  small  lot  in  the  rear,  and  covenanted  in 
the  deed  that  "  a  carriage-way  at  least  twenty-five  feet  wide 
shall  forever  hereafter  be  kept  open  and  unobstructed  from 
said  lot  easterly  to  said  road,"  it  was  held  that  the  grantee 
was  not  entitled  to  a  carriage-way  forty-five  feet  wide,  merely 
because  one  of  that  width  had  been  in  fact  located  and  used 
by  the  grantor,  and  was  defined  by  visible  objects  such  as 
trees,  fences,  and  buildings.  The  case  was  thought  not  like 
that  of  Salisbury  v.  Andrews,  19  Pick.  250,  for  there  the 
right  given  was  to  pass  through  Central  Court,  a  place  which 
was  laid  out,  had  acquired  a  reputation,  and  was  known  by 
that  name,  and  therefore  it  was  there  thought  not  to  be  a 
forced  construction  to  regard  the  term  "  Central  Court  "  as 
including  all  that  had  been  previously  laid  out,  paved,  and 
fitted  for  the  use  of  the  houses  upon  it ;  and  therefore  it  was 
there  held  that  the  grant  was  of  a  way  limited  and  defined, 

.  1  Farnsworth  v.  Taylor,  9  Gray,  162  (1857).  And  see  Tobey  v.  Taun- 
ton, 119  Mass.  410;  Fox  v.  Union  Sugar  Refinery,  109  Mass.  296 ;  Stetson 
V.  Dow,  16  Gray,  373. 


WAYS.  337 

and  not  merel}'^  of  a  convenient  way,  to  be  defined.  And  al- 
though it  is  a  familiar  rule  that  when  a  right  of  way  is 
granted  ivitJwiit  any  defined  limits,  the  practical  location  and 
use  of  such  way  for  a  certain  width  by  the  grantee  under  his 
deed  acquiesced  in  for  a  long  time  by  the  grantor,  may  op- 
erate as  a  location  and  measure  of  the  width  of  the  way,  as 
held  in  Bannon  v.  Angier,  2  Allen,  128,  yet  such  a  rule  is 
one  of  practical  construction  adopted  to  ascertain  the  intent 
of  the  parties,  when  that  is  indefinite,  and  it  will  not  be  per- 
mitted to  defeat  an  intention  clearly  expressed  in  the  grant 
itself  controlling  the  location  and  width  of  the  way.^ 

It  is  a  question  of  considerable  difficulty  whether  a  right  of 
way  extends  to  two  or  more  persons,  if  the  dominant  Partition 
tenement  is  divided  into  two  or  more  parts  and  be-  "laj^t'^tene- 
comes  the  property  of  several  owners.  It  is  mani-  ment. 
fest  that  in  some  cases  much  hardship  and  injustice  would  be 
produced  by  denying  the  right  to  all  the  owners  of  a  severed 
estate,  or  by  limiting  it  to  one  of  such  owners  alone,  exclud- 
ing all  the  others  from  the  benefit  of  the  easement,  and  in- 
deed, in  the  majority  of  cases,  it  would  be  impossible  to  de- 
termine which  of  several  owners  of  a  divided  estate  is  entitled 
to  the  right  of  way,  to  the  exclusion  of  all  the  rest ;  on  the 
other  hand,  it  is  equally  clear  that  if  a  large  property  to  which 
a  right  of  way  is  appurtenant  is  divided  between  many  per- 
sons, the  right  could  not  be  extended  to  all  the  new  owners 
without  imposing  a  greatly  increased  burden  on  the  servient 
estate,  and  that  increased  burden  would  be  imposed  by  the  act 
of  the  dominant  owner,  which  is  contrary  to  the  recognized 
principle  of  law,  that  no  man  can  impose  a  burden  on  his 
neighbor's  estate  by  his  own  act.  In  the  case  of  Codling  v. 
Johnson,"  a  right  of  way  was  claimed  as  appurtenant  to  a 
close  which  had,  till  about  fifty  years  before  the  action,  formed 
a  part  of  an  open  common ;  the  common  had  at  that  time 
been  inclosed,  and  the  land  was  allotted  to  various  persons. 
It  was  held  that  the  right  to  the  way  by  immemorial  user 
could  be  supported,  for  it  was  possible  that  before  the  inclos- 

1  Stetson  V.  Curtis,  119  Mass.  266. 
"  9  B.  &  C.  933;  8  L.  J.  K.  B.  68. 
22 


338  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

Tire  the  lord  might  have  been  entitled  to  the  way  for  himself 
and  his  tenants,  and  in  such  event  each  person  having  an  al- 
lotment of  part  of  the  dominant  tenement  would  have  the 
right  of  way.  It  is  clear  that  in  this  case,  supposing  a  right 
of  way  had  been  immemorially  used  by  the  lord  and  all  his 
tenants,  the  burden  on  the  servient  tenement  would  not  be 
greatly,  if  at  all,  increased  by  the  allotment  of  the  land  to  the 
tenants,  and  the  distribution  of  the  easement  among  them, 
each  allottee  becoming  entitled  to  a  distinct  right  of  way  ;  but 
this  is  an  uncommon  case.  In  Bower  v.  Hill  ^  a  right  of  way 
for  boats  along  a  stream  leading  from  an  inn  and  an  adjoin- 
ing yard,  which  had  formerly  been  one  property,  to  a  navi- 
gable river,  was  claimed.  A  severance  of  the  yard  from  the 
inn  took  place  about  five  years  before  the  action,  and  the 
plaintiff,  who  sued  for  obstruction  of  the  way,  was  nonsuited, 
on  the  ground  that  the  easement  was  proved  to  belong  to  the 
inn  and  yard  as  one  entire  subject,  and  not  to  the  frontage 
on  the  stream,  in  respect  of  which  the  plaintiff  claimed  the 
right  of  way.  It  was  held  that  the  nonsuit  was  right,  for  the 
evidence  was  that  boats  went  to  the  inn  and  yard  for  such 
purposes  as  carrying  coals  or  corn  to  be  deposited  in  the  gran- 
aries belonging  to  the  inn,  and  materials  for  repairing  the 
house.  From  such  evidence  it  might  fairly  be  left  to  the 
jury  to  presume  a  grant  of  right  of  way  from  the  owner  of 
the  stream  to  the  owner  of  the  inn  and  yard,  for  the  more 
convenient  use  and  enjoyment  of  those  premises,  and  there 
was  no  evidence  that  that  right  had  ever  been  extinguished 
or  released,  but  for  all  that,  it  appeared  the  occupier  of  the 
inn  and  yard  still  had  full  right  to  the  easement  created  by 
such  grant.  The  court  thought  that  construing  the  grant  as 
being  capable  of  distribution  on  severance  of  the  dominant 
tenement,  would  lead  to  very  unreasonable  consequences ;  for 
the  result  would  be  that  two  different  persons  would  be  enti- 
tled to  use  the  way,  or  indeed  as  many  different  persons  as 
possessed  any  share  of  the  frontage,  and  that  this  would  be  a 
very  unreasonable  construction  against  the  grantor,  who  might 

«>  2  Bing.   N.   C.  339.     See,  also,  The  United  Land  Co.  (Limited)  v- 
The  Great  Eastern  Railway  Co.  L.  R.  17  Eq.  158;  43  L.  J.  Ch.  363. 


WAYS.  339 

have  been  contented  to  grant  the  right  of  way  to  the  occupier 
of  the  inn  and  yard,  from  his  knowledge  of  the  degree  of  user 
wliich  would  follow  from  the  grant  when  so  limited.  Inde- 
pendently of  this,  however,  the  court  thought  that  if  the  grant 
had  been  produced  in  evidence,  the  plaintiff  could  not  have 
brought  himself  within  the  description  of  the  grantee,  he  not 
being  the  occupier  of  the  inn  and  yard.  The  result  of  these 
autiiorities  appears  therefore  to  be,  that  if  a  dominant  tene- 
ment is  divided  between  two  or  more  persons,  a  right  of  way 
appurtenant  thereto  becomes  appurtenant  to  each  of  the  sev- 
ered portions,  if  such  distribution  of  the  easement  is  not  at 
variance  with  the  actual  or  presumed  grant  under  which  the 
right  has  been  acquired  ;  and  if  the  right  has  been  acquired 
under  a  presumed  grant,  the  circumstance,  that  distribution 
of  the  right  will  materially  increase  the  burden  on  the  servi- 
ent tenement,  is  strong  evidence  that  such  distribution  would 
be  at  variance  with  the  grant. 

IN    AMERICA, 

it  seems  to  be  settled  that  in  all  cases  if  a  right  of  way  is  ap- 
purtenant to  any  close,  it  attaches  to  each  and  every  part  of 
the  close,  and  it  is  immaterial  into  how  many  parcels  the 
close  may  be  subsequently  divided,  the  owner  of  each  close 
may  enjoy  the  way,  however  much  more  burdensome  such  use 
may  be  to  the  owner  of  the  servient  tenement.^ 

It  is,  of  course,  obvious  that  by  the  repeated  severance  of  the 
dominant  tenement  the  servient  tenement  might  become  sub- 
ject to  the  passage  of  a  hundred  different  persons,  instead  of 
the  one  original  owner,  and  thereby  the  servitude  be  propor- 
tionally increased  ;  but  such  would  also  be  the  case  if  the  dom- 
inant tenement  should  subsequently  be  owned  by  the  same 
number  of  persons  as  tenants  in  common  ;  yet  there  can  be 
no  doubt  in  the  latter  case  that  each  coowner  could  have  an 
individual  right  of  way. 

1  Underwood  v.  Carney,  1  Cusli.  285;  Watson  v.  Bioren,  1  S.  &  R.  227; 
Dawson  v.  St.  Paul  Ins.  Co.  15  Minn.  142;  Brossart  v.  Corlett,  27  Iowa, 
297;  Whitney  j;.  Lee,  1  Allen,  198;  Fox  v.  Union  Sugar  Refinery,  109 
Mass.  298;  Miller  v.  Washburn,  117  Mass.  374. 


340  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

In  connection  with  the  mode  of  user  of  ways,  questions 
„.  ^ .  have  at  times  arisen  as  to  the  right  to  deviate  from 

coming  im-    a  wav  ou  to  the  adjoining  land,  when  the  way  itself 

passable —     •ii,i-  ii  •  p  it 

rj^iit  tode-  IS  absolutely  impassable,  or  in  a  state  irora  the  ordi- 
^"''^'  narj'  collection  of  mud,  or  want  of  necessary  repair, 

which  renders  it  inconvenient  or  reasonably  unfit  for  passage. 
It  is  obvious  that  these  questions  may  arise  from  different 
causes  —  the  way  may  be  close  to  the  sea  or  a  river,  and  may 
be  regularly  covered  with  water  at  high  tide,  or  it  may  be 
covered  only  on  extraordinary  occasions  ;  it  may  happen  that 
at  some  period  of  violent  tempest  the  path  may  be  altogether 
swept  away  for  a  certain  distance,  so  that  communication  be- 
tween the  two  ends  remaining  may  be  broken  off  ;  it  may 
happen,  and  frequently  has  happened,  that  a  way  has  become 
impassable  from  want  of  ordinary  repair,  or  it  may  happen 
that  it  is  impassable  through  the  act,  right  or  wrong,  of  the 
owner  of  the  soil.  In  all  these,  and  possibly  in  other  cases, 
an  important  question  is  likely  to  arise  whether  a  person  en- 
titled to  a  right  of  way  may  pass  over  the  adjoining  land,  or 
whether  he  must  keep  to  the  path,  however  inconvenient  it 
may  be,  or  give  up  his  right  altogether  if  the  way  is  abso- 
lutely stopped,  and  it  is  clear  that  these  questions  may  arise, 
both  as  to  private  and  as  to  public  ways.  Most  of  these  in- 
stances have  arisen,  but  they  have  not  always  come  before 
the  courts. 

If  a  way  be  close  to  the  sea  or  to  a  tidal  river,  and  is  reg- 
ularly covered  with  water  at  high   tide    or   period- 
Way  pen-      ^  J  .... 
odicaiiyin-    ically  when  extraordinarily  high  tides  occur,  the  ex- 

—  rifihtto  istence  or  otherwise  of  a  right  for  the  public  or  for 
deviate.  ^-^^  owiier  of  a  private  right  of  way  to  walk  over 
the  adjoining  land  must  depend  on  the  evidence.  Ordinarily, 
however,  it  would  seem  that  there  is  no  such  right,  and  that, 
in  the  absence  of  evidence  to  the  contrary,  it  would  be  pre- 
sumed that  the  dedication  or  grant  was  made  subject  to  the 
periodical  interruption  ;  and  there  would  be  no  reason  for 
presuming  that,  in  addition  to  the  right  to  walk  over  the 
path,  the  owner  of  the  soil  gave  a  further  right  to  deviate  over 
his  land  when  the  path  was  interrupted.     There  is  no  precise 


WAYS.  341 

authority  for  this,  but  it  has  recently  been  held  that  a  way 
may  be  dedicated  to  the  public,  subject  to  the  grantor's  right 
of  periodical  obstruction  by  ploughing  up  the  soil ;  and  that 
the  public  have,  in  the  absence  of  evidence  to  the  contrarj^^, 
no  right  to  walk  over  the  adjoining  land  when  the  path  is  less 
convenient  from  its  being  ploughed  up,"^  and  the  same  reasons 
which  produced  that  decision  would  apply  to  the  case  of  a 
way  periodically  interrupted  by  the  sea  or  other  causes.  If 
instead  of  being  regularly  and  periodically  obstructed  by  the 
sea  the  way  is  only  interrupted  on  some  extraordi-  interrup- 
nary  occasion  by  a  flood,  there  does  not  seem  to  be  ext'raordi- 
any  reason  why  the  public  or  an  owner  of  a  private  nary  cause, 
right  should  be  entitled  to  walk  over  the  adjoining  land  ;  the 
case  is  one  which  is  not  likely  to  have  been  in  the  contempla- 
tion of  the  parties  at  the  time  of  the  dedication  or  grant,  and 
there  is  consequently  lio  reason  for  presuming  the  existence  of 
a  right  to  deviate  from  the  path  on  to  the  adjoining  land. 

If  by  some  tempest  or  other  natural  cause  a  road  is  abso- 
lutely swept  away  wholly  or  in  part,  there  seems  no  ^3^,4^^^. 
doubt  but  that  all  rights  of  way  over  the  part  de-  tion  of  a 
stroyed  are  totally  lost,  and  that  there  is  no  right  to  right  to  de- 
walk  over  the  adjoining  land  may  be  fairly  assumed. 
That  the  right  of  way  over  a  road  destroyed  is  absolutely 
lost  on  its  destruction  seems  clear  from  the  cases  of  Reg.  v. 
The  Inhabitants  of  Hornsea,^  and  Reg.  v.  The  Inhabitants  of 
Greenhow.^  These  were  both  cases  of  indictments  for  non- 
repair of  highways.  In  the  former  the  road  passed  along  a 
clifif  which  was  washed  away  by  the  sea,  and  it  was  held  that 
the  parish  could  not  be  called  upon  to  repair  the  part  de- 
stroyed, for  that  the  road  was  absolutely  gone ;  and  in  the  lat- 
ter case  the  road  ran  along  the  slope  of  a  hill,  and  was  de- 
stroyed, at  all  events  temporarily,  by  a  landslip.  The  cases 
differed,  inasmuch  as  in  the  latter  a  trace  of  the  old  road  was 
left,  and  the  road  could  be  remade  at  a  moderate  cost,  and  the 

*  Arnold  v.  Blaker,  L.  R.  6  Q.  B.  433;  40  L.  J.  Q.  B.  185;  Arnold  v. 
Holbrook,  L.  R.  8  Q.  B.  96;  42  L.  J.  Q.  B.  80. 
y  1  Dears.  C.  C.  291 ;  23  L.  J.  M.  C.  59. 
«  L.  R.  1  Q.  B.  D.  703;  45  L.  J.  M.  C.  141. 


342  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

parish  was  consequently  bound  to  repair,  whereas  in  the 
former  the  soil  was  wholl}'  swept  away,  and  there  was  no  such 
liability.  Both,  however,  are  authorities  to  show  that  on 
total  destruction  of  a  road  all  rights  of  way  over  it  are  lost, 
and  it  is  only  reasonable  to  infer  that  when  a  right  of  way  is 
destroyed  no  fresh  right  of  way  comes  into  existence  on  fresh 
soil,  for  no  such  right  can  arise  except  by  dedication  to  the 
public,  or  by  grant  to  an  individual. 

In  cases  in  which  ways  have  become  impassable  from  want 
Want  of  of  ordinary  repair  a  distinction  has  been  made  be- 
H'^hrtode-  tween  public  and  private  ways,  it  being  said  that  in 
viate.  ^\^Q  former  case  the  public  have  the  right  to  walk 

over  the  adjoining  land,  whereas  in  the  latter  a  grantee  of  a 
private  right  has  no  such  privilege.  It  is  said  that  this  dis- 
tinction is  made  because  it  is  for  the  general  good  that  a  pas- 
sage should  be  afforded  to  the  public  at  all  times,  but  that  the 
same  reason  does  not  exist  in  the  case  of  a  private  right  of 
way."  It  is  difficult  to  see  any  reasonable  ground  for  this  dis- 
tinction, for  the  cause  assigned  for  it  violates  the  principle  of 
law  that  a  right  in  another  person's  soil  can  be  created  only 
by  the  act  of  the  owner  of  the  soil,  express  or  implied. 
Rights  of  way  can  be  created  only  by  dedication  to  the  public 
or  by  grant,  actual  or  implied,  to  an  individual,  such  dedica- 
tion or  grant  being  the  voluntary  act  of  the  owner  of  the 
ground  ;  but  to  hold  that  because  a  road  over  which  the  owner 
of  land  has  given  a  right  of  way  to  the  public  is  out  of  repair, 
another  right  of  way  over  other  soil  is  immediately  vested  in 
the  public  on  whichever  side  of  the  old  road  the  individ- 
ual members  of  the  public  choose  to  take  it,  is  to  hold  that 
a  public  right  of  way  can  come  into  existence  otherwise  than 

«  Taylor  v.  Whitehead,  Doug.  716  ;"  Bullard  v.  Harrison,  4  M.  &  S.  387. 
In  Taylor  v.  Whitehead,  Lord  Mansfield  remarked,  that  Blackstone,  in 
his  Commentaries,  expresses  an  opinion  that  the  law  of  England  cor- 
responds with  the  Roman  law  in  extending  the  right  of  going  on  the  ad- 
joining ground  when  a  road  is  out  of  repair  to  a  private  as  well  as  a  public 
way.  This  has  been  altered  in  some  recent  editions  of  the  Commenta- 
ries, and-  the  right  of  going  extra  viam  is  now  limited  to  cases  of  highways 
and  private  ways  of  necessity. 


WAYS.  343 

by  the  act  of  the  owner  of  the  land,  and  even  against  his 
will. 

The  opinion  that  if  a  public  way  is  out  of  repair,  the  pub- 
lic may  pass  over  the  adjoining  soil  has  been  shaken  by  the 
remark  of  Blackburn,  J.,  in  the  case  of  Arnold  v.  Holbrook.* 
It  was  said  in  the  argument  that  it  is  laid  down  in  all  the 
text  books  that  if  a  public  way  is  foundrous  and  impassable 
the  public  have  a  right  to  go  on  to  the  adjoining  land,  but 
Blackburn,  J.,  remarked  that  the  foundation  for  those  dicta 
is  Duncomb's  case,''  but  that  it  would  be  found  upon  exam- 
ination the  facts  in  that  case  were  that  the  defendant  had 
narrowed  the  way  ;  the  road  in  that  case  was  not  merely  out 
of  repair  but  the  grantor  of  the  right  had  by  his  own  act  in- 
terfered with  the  right  he  had  given  to  the  public. 

IN    AMERICA, 

the  rule  is  well  settled  in  this  respect,  that  if  a  public  high- 
way becomes  suddenly  impassable  by  some  natural  obstruc- 
tion or  injury,  such  as  snow  drifts  or  heavy  rains,  a  traveller 
may  rightfully  deviate  therefrom  and  pass  along  the  adjoin- 
ing land,  doing  no  unnecessary  damage,  and  without  being 
liable  to  the  landowner  for  so  doing.  The  leading  case  on 
this  point  is  Campbell  v.  Race,^  in  1851 ;  and  Judge  Bigelow, 
in  a  masterly  opinion,  vindicated  the  wisdom  and  propriety  of 
the  decision. 2 

Highways,  he  said,  being   established   for   public   service, 
and   for  the  use  and    benefit  of  the  whole  commu-   Grounds  of 
nity,   a    due  regard  for  the  welfare  of  all  requires    '  e  ru  e. 
that,  when  temporarily  obstructed,  the  right  of  travel  shall 

6  L.  R.  8  Q.  B.  at  pp.  99  and  100. 

c  Cro.  Car.  366. 

1?  Cush.  408.  And  see  State  i\  Northumberland,  44  N.  H.  631; 
Holmes  v.  Seeley,  19  Wend.  507;  Williams  v.  Safford,  7  Barb.  309  ;  Car- 
rick  V.  Johnston,  26  Q.  B.  (Ontario)  65. 

2  Quoting,  also,  2  Bl.  Com.  36;  Woolrych  on  Ways,  50,  51;  3  Cruise 
Dig.  89  ;  Wellbeloved  on  Ways,  38;  Henn's  case,  W.  Jones,  296;  3  Salk. 

182;  1  Saund.  323,  note  3  ;  Absor  v.  French,  2  Show.  28;  Young  v. , 

1  Ld.  Raym.  725;  Taylor  v.  Whitehead,  2  Doug.  745;  BuUard  v.  Harri- 
son, 4  M.  &  W.  387;  3  Dane  Ab.  258;  3  Kent  Com.  424. 


344  EXTENT   AND   MODE   OF   USER    OF   EASEMENTS. 

not  be  interrupted.  And  this  right,  therefore,  rests  upon  the 
maxim  of  the  common  law,  that  where  public  convenience  and 
necessity  come  in  conflict  with  private  right,  the  latter  must 
yield  to  the  former.  Its  exercise  may  also  be  justified  upon 
the  familiar  doctrine  that  inevitable  necessity  or  accident  may 
be  shown  in  excuse  for  an  alleged  trespass.  If  a  traveller 
in  a  highway,  by  unexpected  and  unforeseen  occurrences,  such 
as  a  sudden  flood,  heavy  drifts  of  snow,  or  the  falling  of  a 
tree,  is  shut  out  from  the  travelled  paths,  so  that  he  cannot 
reach  his  destination  without  passing  upon  adjacent  lands,  he 
is  under  a  necessity  so  to  do  ;  that  is  to  say,  the  act  to  be  done 
can  only  be  accomplished  in  that  way.  Such  a  temporary  and 
unavoidable  use  of  private  property  must  be  regarded  as  one 
of  those  incidental  burdens  to  which  all  property  in  a  civilized 
community  is  subject. 

In  the  case  above  referred  to,  it  was  urged  in  argument 
^^  , ,  , .       that  the  effect  of  establishing  this  rule  of  law  would 

Not  taking  .  ,  » 

private  be  to  appropriate  private  property  to  public  use 
without  providing  any  means  of  compensation  to  the 
owner.  But  it  was  remarked  by  the  court  in  reply  :  "  If 
such  an  accidental,  occasional,  and  temporary  use  of  land  can 
be  regarded  as  an  appropriation  of  private  property  to  public 
use,  entitling  the  owner  to  compensation,  which  may  well  be 
doubted,  still  the  decisive  answer  to  this  objection  is  quite  ob- 
vious. The  right  to  go  extra  viam,  in  case  of  temporary  and 
impassable  obstructions,  being  one  of  the  legal  incidents  or 
consequences  which  attaches  to  a  highway  through  private 
property,  it  must  be  assumed  that  the  right  to  the  use  of  land 
adjoining  the  road  was  taken  into  consideration  and  proper 
allowance  made  therefor,  when  the  land  was  originally  appro- 
priated for  the  highway,  and  that  the  damages  were  then  es- 
timated and  fixed  for  the  private  injury  which  might  thereby 
be  occasioned." 

Having  its  origin  in  necessit}'^,  this  right,  it  has  been  said, 
p.  must  be  limited  by  that  necessity  ;  cessante  ratione, 

ited  by  the  cessat  ivsa  lex.  "  Such  a  right  is  not  to  be  exercised 
necessitj'.       -.  .  ,  i  i       ,i 

irom  convenience  merely,  nor  when,  by  the  exercise 

of  due  care,  after  notice  of  obstructions,  other  ways  may  be 


WAYS.  345 

selected  and  the  obstructions  avoided.  But  it  is  to  be  con- 
fined to  those  cases  of  inevitable  necessity  or  unavoidable 
accident,  arising  from  sudden  and  recent  causes  which  have 
occasioned  temporary  and  impassable  obstructions  in  the  high- 
way. What  shall  constitute  such  inevitable  necessity  or  un- 
avoidable accident,  must  depend  upon  the  various  circum- 
stances attend" ng  each  particular  case.  The  nature  of  the 
obstruction  in  the  road,  the  length  of  time  during  which  it 
has  existed,  the  vicinity  or  distance  of  other  public  ways,  the 
exigencies  of  the  traveller,  are  some  of  the  many  consider- 
ations which  would  enter  into  the  inquiry,  and  upon  which  it 
is  the  exclusive  province  of  the  jury  to  pass,  in  order  to  de- 
termine whether  any  necessity  really  existed  which  would  jus- 
tify or  excuse  the  traveller." 

If  a  private  way  is  rendered  impassable  by  the  act  of  the 
grantor  the  authorities  show  that  the  owner  of  a  Qbstruc- 
right  of  way  would  be  justified  in  passing  over  tion  by 
the  adjoining  ground,  provided  it  belonged  to  the  right  to  de- 
grantor  of  the  easement,  and  provided  the  act  of 
deviation  was  a  reasonable  thing  in  connection  with  the  user 
of  the  right.i  In  Hawkins  v.  Carbines'^  it  was  held  that 
as  the  grantor  of  a  right  of  way  had,  subsequently  to  the 
grant,  reduced  the  width  of  the  way  so  that  the  grantee  could 
not  enjoy  his  easement  so  fully  as  at  the  time  of  the  grant 
(he  not  being  able  to  turn  his  horse  and  cart  round  as  he 
could  before  the  alteration),  the  grantee  was  justified  in  going 
a  little  farther  on  the  grantor's  land,  as  by  so  doing  he  could 
obtain  full  enjoyment  of  his  right.  So,  also,  in  the  case  of 
Selby  V.  Nettlefold,*  where  a  tenant  for  life  granted  to  a  pur- 
chaser a  right  of  way  along  a  towing  path  by  the  side  of  a 
canal  and  subsequently  built  a  bridge  across  the  canal  with 
an  approach  of  such  a  character  as  to  obstruct  the  towing 
path  so  that  a  person  using  the  towing  path  must,  on  reaching 

1  Leonard  v.  Leonard,  2  Allen,  543;  Farnum  v.  Piatt,  8  Pick.  339;  Bass 
V.  Edwards,  126  Mass.  449. 

<^  3  H.  &  N.  914  ;  27  L,  J.  Exch.  44;  Dawes  v.  Hawkins,  8  C.  B. 
N.  S.  857  ;  29  L.  J.  C.  P.  343. 

«  L.  R.  9  Ch.  App.  Ill  ;  43  L.  J.  Ch.  359. 


346  EXTENT   AND   MODE   OF   USER   OF  EASEMENTS. 

the  bridge,  leave  the  path  and  pass  over  other  land  of  the 
grantor  to  get  round  the  bridge  and  thence  to  the  other  part 
of  the  path,  it  was  held  that  the  owner  of  the  easement  had 
a  right  to  deviate  in  that  way  over  the  grantor's  land,  and 
that  the  grantor  could  not  obstruct  the  substituted  way. 

If  a  way  is  out  of  repair  and  impassable,   the  grantee  is 

justified  in  repairing  it,  and  indeed  it  is  his  business 

repair  a        to  do  SO  ;  ^  for  when  the  use  of  a  thing  is  granted, 

everything  is  granted  by  which  the  grantee  can  have 

and  enjoy  such  use,  and  at  common  law  the  right  to  repair  is 

incident  to  a  grant  of  a  right  of  way/ 

It  is  not  often  that  difficulty  is  experienced  in  determining 
Direction  the  direction  of  a  way.  If  the  right  has  been  ac- 
0  ways.  quired  by  grant  the  deed  almost  invariably  points 
out  the  termini  to  and  from  which  the  way  is  to  be  used,  and 
a  beaten  path  is  in  fact  made ;  and  if  the  right  has  been  ac- 
quired by  prescription  the  termini  are  never  less  certain  ;  and, 
moreover,  a  path  is  almost  sure  in  the  course  of  time  to  get 
beaten  out  in  such  a  manner  that  there  can  be  no  doubt  by 
the  time  the  right  is  acquired  about  the  direction  of  the  way. 
There  are  instances,  however,  in  which  the  particular  direction 

1  See  Doane  v.  Badger,  12  Mass.  70;  Atkins  v.  Bordman,  2  Met.  457; 
Wynkoop  v.  Burger,  12  Johns.  222;  Thompson  v.  Uglow,  4  Oreg.  369; 
Eoberts  v.  Roberts,  55  N.  Y.  275;  McMillen  v.  Cronin,  13  Hun,  68;  which 
may  be  the  reason  he  is  not  allowed  to  go  over  the  adjoining  land,  by  rea- 
son of  a  want  of  repair  merely.  See  Bakeman  v.  Talbot,  31  N.  Y.  372; 
Capers  v.  McKee,  1  Strobh.  168  ;  Holmes  v.  Seeley,  19  AVend.  507  ;  Mil- 
ler V.  Bristol,  12  Pick.  550. 

/  Gerrard  v.  Cooke,  2  B.  &  P.  N.  C.  109  ;  Pomfret  v.  Ricroft,  1  Wms. 
Saund,  320  d  ;  Taylor  v.  Whitehead,  Doug.  716  ;  per  Sir  J.  Romilly, 
M.  R.,  in  Ingram  v.  Morecraft,  33  Beav.  49.  The  principle  is  the  same 
in  the  case  of  a  public  way.  Where  the  flagstones  of  a  foot  pavement 
forming  the  roof  of  a  cellar  got  out  of  repair  from  the  public  walking  over 
them,  it  was  held  to  be  the  duty  of  the  vestry,  and  not  of  the  owner  of  the 
cellar,  to  repair  them.  Hamilton  v.  St.  George's  Vestry,  L.  R.  9  Q.  B.  42; 
43  L.  J.  Q.  B.  41.  So,  also,  in  the  case  of  right  to  support,  if  the  means 
of  support  give  way,  there  is  no  obligation  to  repair  on  the  part  of  the 
owner  of  the  servient  tenement;  but  the  owner  of  the  dominant  tenement 
must  repair,  and  he  may  enter  on  the  servient  tenement  for  the  purpose. 
Colebeck  v.  The  Girdlers'  Co.  1  Q.  B.  D.  at  p.  243  ;  45  L.  J.  Q.  B.  at  p.  230. 


WAYS.  347 

of  a  way  is  a  matter  of  uncertainty.  When  a  way  is  acquired 
"of  necessity  "  there  may  be  an  uncertainty  as  to  its  direction, 
as  there  is  neither  a  deed  of  grant  nor  prescriptive  user  to 
mark  its  course  ;  but  even  in  the  case  of  a  prescriptive  right, 
and  possibly  in  the  case  of  a  way  created  by  express  grant,  the 
line  of  the  way  may  be  more  or  less  indefinite,  as  was  the  case 
in  the  recent  suit  of  The  Wimbledon  and  Putney  Commons 
Conservators  v.  Dixon,^  where  it  appears  that  the  way  in 
question  passed  over  a  common  to  a  farm,  but  that  there  was 
no  definite  road,  only  a  series  of  tracks  in  varying  hues.  The 
question  of  direction  was  not  the  main  question  in  the  case, 
but  it  was  noticed  at  some  length  by  Mellish,  L.  J.,  in  his 
judgment,  and  the  passage  may  be  quoted  here  with  advan- 
tage. He  said  :  "  I  do  not  any  more  than  the  lord  justice 
agree  with  what  was  thrown  out  by  the  master  of  the  rolls 
as  to  the  consequence  of  the  track  not  being  a  perfectly  defi- 
nite track  over  the  common,  but  being  a  track  going  in  vary- 
ing lines  previously  to  the  time  when  the  new  road  was  made. 
No  doubt  if  a  person  has  land  bordering  on  a  common,  and 
it  is  proved  that  he  went  on  the  common  at  any  place  where 
his  land  might  happen  to  adjoin  it,  sometimes  in  one  place 
and  sometimes  in  another,  and  then  went  over  the  common 
sometimes  to  one  place  and  sometimes  to  another,  it  would  be 
difficult  from  that  to  infer  any  right  of  way.^  But  if  you 
can  find  the  terminus  a  quo  and  the  terminus  ad  quem^  the 
mere  fact  that  the  owner  does  not  go  precisely  in  the  same 
track  for  the  purpose  of  going  from  one  place  to  the  other 
would  not  enable  the  owner  of  the  servient  tenement  to  dis- 
pute the  right  of  road.  Suppose  the  owner  of  this  common 
had  granted  by  deed  to  Mr.  Dixon  the  right  to  go  from  the 
gate  leading  out  of  Ccesar's  Camp  to  the  highway  by  the  Na- 
tional School,  with  carriages  and  horses  at  his  free  will  and 
pleasure,  I  cannot  suppose  that  the  grant  would  fail  in  point 
of  law  because  it  did  not  point  out  the  precise  definite  track 
between  the  one  terminus  and  the  other  in  which  he  was  to 
go  in  using  the  right  of  way.     If  the  owner  of  the  servient 

9  1  Ch.  D.  362. 

1  And  see  Jones  v.  Percival,  5  Pick.  485. 


348  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

tenement  does  not  point  out  the  line  of  way  then  the  grantee 
must  take  the  nearest  wa}'  he  can.  If  the  owner  of  the  ser- 
vient tenement  wishes  to  confine  him  to  a  particular  track  he 
must  set  out  a  reasonable  way,  and  then  the  person  is  not  en- 
titled to^o  out  of  the  way  merely  because  the  way  is  rough 
and  there  are  ruts  in  it  and  so  forth." 

When  a  right  to  a  way  of  necessity  is  created  on  partition 
^.      .         of  an  estate,  it  is  somewhat  difficult  to  determine 

Direction 

of  ways  of  what  ought  to  be  the  direction  of  the  way,  and  who 
is  to  have  the  privilege  of  setting  it  out,  for  it  is  ob- 
vious that  it  may  frequently  happen  that  the  way  the  domi- 
nant owner  would  choose  is  not  that  which  the  servient  owner 
would  wish  him  to  have,  as  a  way  in  another  direction,  owing 
to  the  situation  or  condition  of  the  servient  estate,  may  be 
less  objectionable  to  the  servient  owner  than  that  the  domi- 
nant owner  would  select.  A  difference,  too,  may  exist  in  the 
case  of  land  severed  by  will,  and  land  severed  by  deed  inter 
vivos,  for,  in  the  former  case,  the  testator  being  dead  before 
the  partition  is  effected  and  the  necessity  arises,  he  can  have 
no  voice  in  the  matter.  One  of  the  oldest  cases  bearing  on 
this  topic  is  Oldfield's  case,'*  which  is  reported  very  briefly  as 
follows  :  "  A.  had  an  acre  of  land  which  was  in  the  middle, 
and  incompas'd  with  other  of  his  lands,  and  enfeoffs  B.  of 
that  acre.  And  resolv'd  by  the  4  Inst,  that  B.  shall  have  a 
convenient  way  over  the  lands  of  the  feoffor,  and  he  is  not 
bound  to  use  the  same  way  that  the  feoffor  uses."  From  this 
case  two  points  are  gained  :  first,  that  the  way  must  be  con- 
venient for  the  grantee  ;  and,  secondly,  that  though  the  grantor 
may  have  been  in  the  habit  of  using  a  particular  path  the 
grantee  is  not  necessarily  bound  to  accept  the  same,  but  may 
have  another  if  that  is  not  convenient.  There  are  remark- 
ably few  authorities  on  this  subject,  and,  even  of  late  years, 
the  cases  bearing  on  this  matter  are  few ;  in  Osborn  v.  Wise,* 
however,  a  dictum  of  Parke,  B.,  at  nisi  prius,  occurs,  that 
learned  judge  being  reported  to  have  said  :  "  If  the  way 
granted  by  the  lease  is  of  no  use,  the  law  would  give  as  a  way 

*  Noy's  Reports,  123. 
<  7  C.  &  P.  at  p.  763. 


WAYS.  349 

of  necessity  the  nearest  passage  along  the  land  of  the  grantor 
to  the  nearest  public  highway."  Though  the  route  is  there- 
fore to  be  convenient  to  the  grantee  and  the  nearest  passage 
to  a  highway,  it  cannot  be  supposed  that  Parke,  B.,  intended 
that  the  interest  of  the  grantor  should  be  entirely  overlooked  ; 
for  if  a  beaten  track  led  from  the  dominant  tenement  to  the 
highway,  doubtless  the  dominant  owner  would  be  obliged  to 
take  his  way  along  that,  and  would  not  be  suffered  to  make  a 
fresh  path  through  a  standing  crop  on  arable  land,  or  to  break 
a  new  passage  through  a  hedge,  or  across  a  private  garden, 
merely  because  such  a  course  would  be  somewhat  shorter  or 
more  convenient  for  him.  Lastly,  there  is  the  case  of  Pear- 
son V.  Spencer,-'  in  which  the  matter  came  directly  in  question 
and  received  much  consideration.  The  court  distinctly  rec- 
ognized the  principle  that  the  way  must  be  convenient  for  the 
grantee,  and  then  continued  in  the  judgment :  "  But  there  is  a 
singular  absence  of  authority  as  to  the  manner  in  which  it 
is  to  be  ascertained  what  is  to  be  the  direction  of  the  con- 
venient way  tlius  created.  In  2  RoUe's  Abridgment,  p.  60, 
Graunts,  Z.  pi.  17,  it  is  said  that  the  feoffor  who  grants  the 
landlocked  land,  and  retains  the  other,  which  thus  becomes  the 
servient  tenement,  shall  assign  the  way  where  it  is  most  con- 
venient to  himself.  Packer  v.  Welsted,  2  Sid.  39,  was  a  case 
where  the  grantor  retained  the  landlocked  tenement,  which 
became  the  dominant  tenement ;  it  is  said  that  he  should  take 
a  way,  and  the  law  should  adjudge  if  it  was  a  convenient  way. 
In  each  case  it  seems  to  have  been  thought  that  the  person  by 
whose  act  the  way  was  created  was  subsequently  to  select  the 
way,  subject  only  to  this,  that  it  should  be  a  convenient  way. 
In  the  case  of  a  devisee  it  is  impossible  for  the  testator,  by 
whose  act  the  way  is  created  and  who  is  dead,  to  do  any  sub- 
sequent act  of  selection,  and  if  the  line  of  way  depends  on 
his  intention  it  must  be  discovered  from  the  language  of  the 
will,  understood  with  reference  to  the  state  of  the  property. 
It  might  be  very  difficult  to  state  how  the  way  was  to  be  set 
out  if  the  premises,  before  severance  were  so  occupied  as  to 
afford  no  indication  of  what  was  the  usual  way  in  the  testa- 
^'  1  B.  &  S.  571 ;  in  Exchequer  Chamber,  3  B.  &  S.  761. 


350  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

tor's  time,  but  this  can  rarely  be  the  case  in  practice.  In  gen- 
eral, especially  when,  as  in  the  present  case,  there  was  an  oc- 
cupation by  a  tenant,  there  must  be  an  actual  existing  way  by 
which  the  premises  were  used  and  enjoyed  ;  and  we  think  we 
best  effectuate  the  intention  of  the  testator  by  construing  the 
implied  grant  of  a  way  to  be  a  grant  of  that  way  actually 
used  at  the  time." 

From  the  same  case  of  Pearson  v.  Spencer,*  it  would  seem 
Variation  that  a  Way  of  necessity,  once  set  out,  cannot  be  va- 
of  waTsof*  '^^^^  ^^  direction  by  the  servient  owner,  except,  it 
necessitj'.  j^ay  be  presumed,  with  the  consent  of  the  dominant 
owner. 

IN    AMERICA, 

the  prevailing  rules,  when  a  way  by  necessity  is  implied  by 
the  sale  of  one  of  two  adjoining  estates,  seems  to  be  : 

1.  That  if  a  way  de  facto  has  been  used  in  some  particu- 
lar location  or  route  over  one  lot  by  the  owner  of  both,  the 
presumption  is,  in  the  absence  of  anything  to  the  contrary, 
that  the  way  shall  continue  where  it  has  before  been  ;  but  this 
presumption  would  not  prevent  the  owner  of  the  servient  ten- 
ement from  assigning  to  the  other  some  other  practicable  and 
reasonably  convenient  way  over  the  premises.  The  owner  of 
the  dominant  estate  has  a  right  to  a  way,  but  not  necessarily 
to  the  way  before  used.^ 

2.  That  if  no  such  prior  use  has  been  made,  and  the  way  is 
to  be  located  for  the  first  time,  the  owner  of  the  servient  ten- 
ement has  the  first  right  to  locate  the  way,  provided  he  does 
so  in  a  reasonable  manner  ;  ^  but  if  he  neglects  to  do  so,  upon 
request  of  the  owner  of  the  way,  the  latter  may  then  locate 
the  way,  and  he  must  do  so  in  a  reasonable  manner,  having 
regard  to  the  inconvenience  to  the  other  party,  as  well  as  to 
his  own  ;  and  he  has  not  an  absolute  right  in  all  cases  to  take 
the  "  shortest  cut  "  across  the  other's  estate.^ 

'^  1  B.  &  S.  at  p.  584. 

1  See  Bass  v.  Edwards,  126  Mass.  447. 

2  See  Nichols  v.  Luce,  24  Pick.  104. 

8  See  Fielder  v.  Bannister,  8  Grant's  Ch.  R.  (Ont.)  257;  Pinnington  v. 
Galland,  9  Exch.  1;  Smiles  v.  Hastings,  24  Barb.  44;  Holmes  v.  Seeley,  19 


WAYS.  351 

3.  And  after  a  way,  whether  of  necessity  or  by  grant,  has 
once  been  duly  located  or  assigned,  there  is  no  right,  ordinarily, 
to  change  it,  except  by  mutual  consent,'  unless  under  extraor- 
dinary circumstances.^ 

If  a  right  of  way  be  granted  for  a  particular  and  continu- 
ing purpose,  the  purpose  is  to  be  regarded  in  con-    Grant  for 
struing  the  grant,  in  order  to  ascertain  the  nature   f„!:""'"^"' 

*^  c3  '  ing  pur- 

and  extent  of  the  easement,  and  the  grantee  is  en-  po^^- 
titled  to  vary  liis  mode  of  enjoying  the  easement,  and  from 
time  to  time  to  avail  himself  of  modern  inventions, 
if,  by  so  doing,  he  can  more  fully  exercise  and  enjoy  of  mode  of 
the  object  or  carry  out  the  purpose  for  which  the 
easement  was  granted.  Thus,  in  a  case  where  a  grant  was 
made,  in  the  year  1630,  of  certain  lands,  excepting  the  mines, 
and  reserving  to  the  grantor  sufficient  way-leave  to  the  mines, 
it  was  held  that  the  mine-owner  was  entitled  to  lay  down  a 
railway  for  the  purpose  of  carrying  his  minerals,  although 
railways  were  unknown  at  the  date  of  the  grant,  for  that  the 
object  of  the  reservation  of  way-leave  for  the  mine-owner  was 
to  enable  him  to  get  the  coals  in  a  beneficial  manner,  and  that 
there  consequently  passed  to  the  mine-owner  a  right  to  such  a 
description  of  way-leave,  and  a  right  of  way  in  such  a  direc- 
tion as  would  be  sufficient  to  enable  him  from  time  to  time  to 
get  all  the  minerals  at  a  reasonable  profit.' 

If  a  man  has  power  under  an  act  of  parliament,  or  other- 
wise, to  make  a  way  across  another  person's  land,  there  can 
be  little  doubt  but  that  he  must  exercise  his  power  in  a  rea- 

Wend.  507;  Capers  v.  Wilson,  3  MoCord,  170;  Nichols  v.  Luce,  24  Pick. 
102;  Hart  v.  Conner,  25  Conn.  331.  The  owner  of  the  way  is  in  all  cases 
entitled  to  a  reasonably  convenient  and  direct  path.  Pratt  v.  Sanger,  4 
Gray,  84. 

1  See  Jaqui  y.  Johnson,  27  N.  J.  Eq.  526,  552;  Evangelical  Home  v. 
Buffalo  Hydraulic  Association,  64  N.  Y.  563;  Jennison  v.  Walker,  11 
Gray,  423;  Smith  v.  Lee,  14  Gray,  4  73;  Jones  v.  Percival,  5  Pick.  485; 
Bannon  v.  Angier,  2  Allen,  128;  Chandler  v.  Jamaica  Pond  Aqueduct, 
125  Mass.  550;  George  v.  Cox,  114  Mass.  388. 

i  Dand  v.  Kingscott,  6  M.  &  W.  174;  9  L.  J.  N.  S.  Exch.  279;  Bishop 
V.  North,  11  M.  &  W.  418  ;  12  L.  J.  Exch.  362;  Senhouse  v.  Christian,  1 
T.  R.  560. 


352  EXTENT   AND   MODE   OF   USER   OF   EASEMENTS. 

sonable  manner,  and  have  some  regard  to  the  convenience  of 
Power  to  *^^®  servient  owner,  so  as  to  avoid  inflicting  on  him 
make  ways   needless  and  unreasonable  iniurv.    In  Abson  v.  Fen- 

to  be  exer-  .  i   i  <•  i  • 

cised  rea-  ton,"*  muies  were  reserved  by  act  of  parhament  for  a 
lord  of  a  manor  on  inclosure  of  a  common,  "together 
with  all  convenient  and  necessary  ivays^  way-leaves,  roads, 
and  passages  then  already  made  and  thereafter  to  be  made, 
and  liberty  of  laying,  making,  and  repairing  wagon-ways  and 
other  ways  in,  over,  and  along  "  the  common  land.  In  an  ac- 
tion for  making  a  wagon-way  in  an  improper  direction  and 
manner,  it  was  held  that  the  true  question  for  the  jury  was 
not  whether  the  road  had  been  made  in  the  direction,  or  in 
the  manner  least  injurious  to  the  owner  of  the  alloted  land,  or 
in  that  direction,  or  by  that  mode  which  a  strict  and  rigid 
necessity  would  point  out,  and  much  less  whether  it  had  been 
made  in  that  direction  or  by  that  mode  which,  upon  a  view  of 
the  work  when  accomplished,  and  when  a  better  judgment 
might  possibly  be  formed  than  could  have  been  formed  be- 
fore, might  be  thought  by  persons  possessing  the  highest  de- 
gree of  skill  and  experience  to  be  the  best  that  could  have 
been  devised ;  but  whether  the  direction  chosen  was  such  as  a 
person  of  reasonable  and  ordinary  skill  and  experience  would 
have  selected  beforehand,  and  whether  the  mode  adopted  was 
such  as  a  prudent  and  rational  person  would  have  adopted,  if 
he  had  been  making  the  road  over  his  own  land  and  not  over 
the  land  of  another  man.  This  view,  it  was  added,  in  the 
judgment  of  the  court,  would,  on  the  one  hand,  exclude  all 
wanton,  capricious,  and  causeless  injury  to  the  owners  of  the 
allotments,  and,  on  the  other,  would  admit  of  an  exercise  of 
the  right  reserved  by  the  statute  in  such  a  manner  as  would 
make  the  right  beneficial  to  the  lord.  In  the  case  of  Dudley 
V.  Horton,"  it  had  been  enacted  by  act  of  parliament  that  in 
case  mine-owners  should  find  it  expedient  and  necessary  to 
make  railways  from  their  mines  to  a  canal  it  should  be  lawful 
for  them,  if  they  could  not  agree  with  the  owners  of  the  land 
between  their  mines  and  the  canal,  to  apply  to  certain  com- 

"»  1  B.  &  C.  195;  1  L.  J.  K.  B.  94. 

"  4  L.  J.  Ch.  104  (not  elsewhere  reported). 


WAYS.  353 

missioners,  and  that  if  it  appeared  to  the  commissioners  that 
such  railways  were  necessary  and  fitting  to  he  made,  the  mine- 
owners  should  be  empowered  to  make  such  railways.  Certain 
mine-owners  intending  to  exercise  the  power,  the  landowners 
applied  to  the  Court  of  Chancery  to  restrain  them  from  so 
doing,  on  the  ground  that  the  railway  proposed  to  be  made 
would  be  exceedingly  injurious  to  the  land,  and  was  not  nec- 
essary for  the  mine-owners  within  the  meaning  of  the  act. 
The  vice  chancellor  was  of  opinion  that  the  power  was  abused 
by  the  attempt  to  make  the  way  in  question,  for  it  was  in- 
tended to  be  fifty  yards  wide,  of  great  length,  and  to  be  car- 
ried through  the  middle  of  the  plaintiff's  field ;  and  that  it 
mattered  not  that  this  great  width  was  required  because  the 
nature  of  the  ground  rendered  it  necessary  that  the  railway 
should  be  supported  by  an  embankment  on  each  side.  An  in- 
junction was  therefore  granted  to  restrain  the  making  of  the 
line  until  the  rights  of  the  parties  could  be  determined  at  law. 

23 


CHAPTER  IV. 

ON    DISTUKBANCE    OF    EASEMENTS    AND   ON    LEGAL   REME- 
DIES  FOR   THE   SAME. 

When  easements  have  been  acquired  and  their  extent  and 
proper  mode  of  enjoyment  have  been  ascertained,  it  is  very 
material  for  the  owners  of  those  rights  to  know  when  they 
have  been  infringed,  as  well  as  to  understand  the  circum- 
stances under  which  the  law  will  afford  them  a  remedy  for  their 
wrong.  Besides  this,  it  is  important  for  them  to  understand 
when  they  may  apply  to  the  court  for  an  injunction  —  that 
preventive  remedy  afforded  in  some  cases  by  the  law  to  ward 
off  threatened  injury,  or  to  prevent  the  continuance  of  wrong 
already  commenced.  This  is  no  part  of  the  law  of  procedure, 
the  consideration  of  which  it  is  not  designed  to  enter  upon  in 
this  treatise ;  for  it  is  one  thing  to  inquire  under  what  circum- 
stances the  law  will  give  a  remedy  b}^  action  for  damages  or 
for  an  injunction,  and  another  to  ascertain  the  steps  that  must 
practically  be  taken  to  induce  the  court  to  afford  those  rem- 
edies :  the  former  is  a  part  of  the  substantive  law,  the  latter 
is  procedure.  As  it  is  not  in  contemplation  to  treat  in  this 
work  on  procedure,  those  rules  relating  to  pleading  which  are 
to  be  found  in  the  fifth  section  of  the  Prescription  Act  will 
not  be  considered  in  the  present  chapter,  nor  the  alteration 
effected  in  them  by  the  Judicature  Act. 

Sect.  1.  —  On  Disturbance  of  Easements  generally,  and  on 
Legal  Remedies  for  the  same. 

Primd  facie,  every  person  entitled  to  a  natural  right  or  to 
Right  of  an  easement  is  also  entitled  to  the  enjoyment  of  his 
fromd^-  i^ig^t  without  disturbance,  and  any  disturbance  is  a 
turbance.     wrong  for  which  the  party  injured  has   a  remedy. 


EASEMENTS  GENERALLY.  355 

If  the  person  causing  the  disturbance  is  merely  exercising  a 
natural  right  to  which  he  is  entitled,  or  an  easement  he  has 
acquired,  his  act  is  justifiable,  and  the  party  disturbed  can 
have  sustained  no  legal  injury.  So,  also,  if  he  is  exercising 
powers  conferred  upon  him  by  act  of  parliament." 

It  is  not,  however,  for  every  wrong  committed  that  an  ac- 
tion for  damages  will  lie,  or  in  which  the  court  will   Actual 
grant  an  injunction,  for  there  are  many  instances  in   damage 

...  requisite 

which  it  is  essential  that  actual  damage  shall  have  for  cause  of 
been  sustained,  in  order  that  a  right  of  action  may  certain 
arise.  If,  however,  a  trespass  has  been  committed,  '^^^^^' 
an  action  will  generally  lie  without  proof  of  actual  damage,  for 
in  all  trespasses  the  law  presumes  that  damage  is  sustained.* 
As,  however,  natural  rights  and  easements  are  rights  which 
the  dominant  owner  possesses  not  in  his  own  land,  but  in  or 
over  the  soil  of  another  person,  no  trespass  can  be  committed 
against  the  dominant  owner  if  the  enjoyment  of  his  easement 
is  disturbed,  for  the  act  by  which  the  disturbance  is  caused  is 
generally,  if  not  always,  upon  the  servient  tenement ;  and  it 
is  therefore  essential,  for  the  maintenance  of  an  action  fqr  dis- 
turbance of  an  easement,  or  of  a  natural  right,  that  damage 
should  actually  have  been  sustained.'^ 

The  principle  of  law,  that  no  action  will  lie  in  the  absence 
of  actual  damage  or  unless  a  trespass  is  committed,  ^^gence  of 
has  been  carried  so  far,  that  even  in  cases  in  which   damage 

.  .  within  a 

acts  of  parliament  have  expressly  limited  the  time   time  lim- 
for  commencing  actions  for  injuries  received  through    commenc- 
any thing  done  under  the  provisions  of  the  acts  to  a   ">g  actions. 
certain  period  —  as,  for  instance,  six  months  —  from  the  time 

°  Duke  of  Bedford  v.  Dawson,  L.  R.  20  Eq.  353;  44  L.  J.  Ch.  549. 

MVilliaois  v.  Morland,  2  B.  &  C.  910;  2  L.  J.  K.  B.  191;  Smith  v. 
Thackerah,  L.  R.  1  C.  P.  564;  35  L.  J.  C.  P.  276. 

<=  Bonomi  v.  Backhouse,  9  H.  L.  C.  503;  34  L.  J.  Q.  B.  181;  Smitl^  v. 
Thackerah,  L.  'R.  1  C.  P.  564;  35  L.  J.  C.  P.  276  ;  Wright  v.  Howard, 
1  Sim.  &  St.  190;  1  L.  J.  Ch.  94.  It  is  questionable  whether  an  infringe- 
ment of  the  natural  right  to  purity  of  water  by  pouring  in  and  sending 
filthy  matter  on  to  the  dominant  owner's  land  does  not  involve  a  trespass 
on  that  land,  and  so  give  a  cause  of  action  without  proof  of  actual  dam- 
age. 


356  DISTURBANCE   OF  EASEMENTS. 

when  the  act  which  caused  the  injury  was  committed,  it  has 

been  held    that  the    time  within    which  the    action  may  be 

brought  is  to  be  computed  from  the  period  when  damage  has 

been  actually  sustained,  if  the  receipt  of  damage  is  essential 

for  a  cause  of  action,  and  not  from  the  time  when  the  act  of 

disturbance  was  in  fact  committed.*^ 

The  damage,  however,  which  is  requisite  to  give  a  cause  of 

^  action  for  disturbance  of  an  easement  must  be  sub- 

Damage  .  ,  .     .       ,  ,    .  ™  . 

must  be        stautiai  in  its  character ;  it  is  not  sutncient  to  show 

substantial.  ■,  .1  j_      p   •    •  ^      .    -p 

a  merely  nominal  amount  01  injury  ;  but  11  a  num- 
ber of  persons,  either  acting  together  or  independently,  inter- 
siight  fere  with  the  enjoyment  of  an  easement,  an  action 

damage  by   ^jjj  ^ie  for  an  iniunctioii  against  them   all,  though 

many  per-  Jo  '  o 

sons.  the  obstruction  caused  by  each  of  them  individually 

is  of  a  character  insufficient  in  itself  to  support  an  action.® 

Though  the  law  will  not  allow  presumptions  of  damage  to 

Disturb-       be  made,  except  in  cases  in  which  a  trespass  has 

ease^nients     been  committed,  yet,  in  the  case  of  easements,  it  has 

an  injury  ^gen  held  that  an  action  will  lie  for  disturbance,  al- 
to the  ntiht,  _  ' 

■which  gives  though  no  Special  damage  has  resulted  therefrom  to 
action.  the  dominant  owner :  the  reason  for  this  is  that  an^ 
disturbance  of  his  easement  is  an  injury  to  the  right  of  the 
owner  as  it  tends  to  call  his  right  in  question,  and  as  it  may 
at  a  future  time  be  proved  as  evidence  in  derogation  of  his 
title.  The  injury  to  the  right  is  sufficient  actual  damage  to 
support  the  action.  Thus,  where  the  inhabitants  of  a  certain 
locality  claimed  a  right  to  take  water  for  use  in  their  houses, 
from  a  spout  in  a  highway,  and  the  owner  of  land,  through 
which  the  water  flowed  to  the  spout,  from  time  to  time  ab- 
stracted the  water  to  such  an  extent  as  to  render  the  quantity 
which  passed  to  the  spout  insuSicient  for  the  supply  of  all  the 
persons  entitled  to  use  the  water,  it  was  held  that  an  action 
would  lie  at  the  suit  of  one  of  the  dominant  owners,  although 
he  personally  had  sustained  no  actual  injury,  because  the  ef- 
fect of  the  repeated  acts  of  abstraction  might  furnish  the 
foundation  of  a  claim  of  right  in  the  defendant  in  derogation 

^  Roberts  v.  Read,  16  East,  215;  Gillon  v.  Boddington,  1  C.  &  P.  541. 
«  Thorpe  v.  Brumfitt,  L.  R.  8  Ch.  App.  650. 


EASEMENTS  GENERALLY.  357 

of  the  right  of  the  plaintiff,  which  might  be  rendered  vakie- 
less/  So,  it  was  also  held,  that  if  an  obstruction  is  placed  in 
a  path,  which  being  suffered  to  remain,  would  in  coarse  of 
time  furnish  evidence  of  abandonment  of  a  right  of  way,  an 
action  will  lie  for  the  obstruction,  although  no  damage  has  act- 
ually accrued  therefrom,  and  even  though  the  way  has  been 
impassable  from  natural  causes,  and  unused  for  a  long  period.^ 
In  support  of  the  above  propositions,  the  judgment  of  Little- 
dale,  J.,  in  the  case  of  Williams  v.  Morland''  may  be  cited, 
for  he  said  :  "  It  is  true  that  in  trespass  for  a  wrongful  entry 
into  the  land  of  another  a  damage  is  presumed  to  have  been 
sustained,  though  no  pecuniary  damage  be  actually  proved. 
So,  in  the  case  of  an  action  for  the  obstruction  of  a  right  of 
common,  or  a  right  of  way,  any  obstruction  of  that  right  is  a 
sufficient  cause  of  action.  The  doing  of  any  act  calculated  to 
injure  that  right  is  a  sufficient  ground  of  action ;  but,  gener- 
ally speaking,  there  must  be  a  temporal  loss  or  damage  accru- 
ing from  the  wrong  act  of  another  in  order  to  entitle  a  party 
to  maintain  an  action  on  the  case." 

It  has  been  a  matter  of  some  doubt  whether  the  owner  of  a 
natural  right  could  sue  for  disturbance  unless  he  had   Right  to 
applied  the  subject  of  the  right  to  a  purpose  of  util-   turbance 
ity,  for  unless   he  had  done  so,  it  was  thought  he   ^Ij^^^^^^^ 
could  not  have  received  damage  from  disturbance,   the  absence 

^  ^  of  actual 

and  there  are  some   expressions  in  the  earlier  cases   damage. 
reported  which  tend  to  support  this  view  ;  *  but  if  obstruction 

/  Harrop  v.  Hirst,  L.  R.  4  Exch.  43 ;  38  L.  J.  Exch.  1. 

a  Bower  v.  Hill,  1  Bing.  N.  C.  549. 

'^  2  B.  &  C.  at  p.  916. 

'  In  Wright  v.  Howard  (1  Sim.  &  St.  190 ;  1  L.  J.  Ch.  94)  it  is  said: 
"  But  although  no  man  can  acquire  a  right  to  the  exclusive  use  of  water 
except  by  grant,  either  express  or  presumed,  yet,  on  the  other  hand,  what- 
ever exclusive  use  I  may  make  of  the  water,  I  am  not  answerable  to  a 
court  of  law  for  it  till  actual  injury  to  others  arises.  If  my  neighbor 
proves  that  I  have  done  him  an  actual  injury  by  the  diversion  of  the  wa- 
ter from  its  natural  channel,  he  can  sustain  an  action  against  me;  but 
he  has  no  right  of  action  till  injury  has  actually  ensued.  It  does  not, 
however,  follow,  as  was  asserted  at  the  bar,  that  because  no  injury  hap- 
pens, or  can  happen,  when  the  diversion  is  first  made,  that  diversion 
cannot  afterwards  be  the  subject  of  complaint;  on  the  contrary,  if  at 


358  DISTURBANCE   OF   EASEMENTS. 

of  an  easement  is  such  an  injury  to  the  right  that  it  is  suffi- 
cient to  give  a  cause  of  action,  any  disturbance  of  a  natural 
rigid  must  have  a  similar  effect,  and  it  appears  to  be  now  so 
determined,  for,  in  the  case  of  Sampson  v.  Hoddinott,-'  it  was 
said,  in  the  judgment  of  the  court,  that  if  the  user  of  the 
water  of  a  natural  stream  by  the  defendant,  a  riparian  pro- 
prietor, "  has  been  beyond  his  natural  right,  it  matters  not 
how  much  the  plaintiff  has  used  the  water,  or  whether  he  has 
used  at  all.  In  either  case  his  right  has  been  equally  in- 
vaded, and  the  action  is  maintainable." 

Disturbances  of  natural  rights  and  easements  may  be  ar- 
Eiffhtofac-   I'^^gecl  in   two    classes:    in    the   first,  those    which 

tion  when  merely  affect  the  occupier  of  the  dominant  ten- 
occupier  of  ''  ^  •  (!  T    1 

dominant  cmeut,  such  as  temporary  obstruction  of  light  or  pol- 
aione  dis-  lution  of  air  ;  and  in  the  second  class,  those  which 
turbed.  affect  the  estate  of  a  reversioner.  For  the  first  class 
of  disturbances  the  occupier  who  receives  the  personal  injury 
can  alone  sue  the  wrong-doer,  for  the  reversioner  is  not  hurt ; 
he  sustains  po  injury  even  in  cases  of  user  which  would,  in 
process  of  time,  confer  an  easement  in  derogation  of  a  natural 
right,  as  no  easement  can  be  acquired  against  the  reversioner 

any  time  within  the  twenty  years  injury  is  the  result,  a  remedy  for  that 
injury  may  be  sought  in  an  action.  Should  it  so  happen,  that  for  twenty 
years  my  diversion  of  the  water  operates  no  injury  to  my  neighbors, 
then,  by  virtue  of  the  rule  of  law  presuming  a  grant,  I  acquire  at  the 
end  of  that  time  an  absolute  right  so  to  employ  the  stream.  But  if,  in 
the  twentieth  year,  an  injui-y  were  to  arise  for  the  first  time,  that  wrong 
would  be  as  much  the  subject  of  legal  redress  as  if  it  had  existed  at  the 
first  moment  of  the  diversion."  See,  also.  Mason  v.  Hill  (3  B.  &  Ad. 
304;  5  B.  &  Ad.  1);  Embrey  v.  Owen  (6  Exch.  353;  20  L.  J.  Exch.  212). 
In  Williams  v.  Morland  (2  B.  &  C.  910),  the  plaintiff  appears  to  have 
been  nonsuited,  not  because  he  was  suing  for  disturbance  of  a  natural 
right  and  failed  to  prove  special  damage,  but  because  he  did  not  prove 
the  particular  damage  laid  in  the  declaration. 

J  1  C.  B.  N.  S.  at  p.  611 ;  26  L.  J.  C.  P.  at  p.  150;  Swindon  Water- 
works Co.  (Limited)  v.  Wilts  and  Berks  Canal  Navigation  Co.  (in  H.  L.) 
L.  R.  9  Ch.  451  ;  L.  R.  7  H.  L.  697;  45  L.  J.  Ch.  638;  Crossley  &  Sons 
(Limited)  v.  Lightowler,  L.  R.  8  Eq.  at  p.  296;  2  Ch.  App.  at  p.  483  ; 
Bicket  V.  Morris,  L.  R.  1  H.  L.  Sc.  47  ;  Mott  v.  Shoolbred,  L.  R.  20  Eq. 
22;  44  L.  J.  Ch.  380;  Lord  Norbury  v.  Kitchin,  3  F.  &F.  292;  15L.  T.  501. 


EASEMENTS  GENERALLY.  359 

by  prescription  when  he  is  out  of  possession  of  the  would-be 
servient  tenement,  for  he  cannot  resist  the  user/ 

If  the  reversionary  estate  in  a  dominant  tenement  is  in  any 
way  iniured  by  the  disturbance  of  an  easement,  not   „.  ,     , 

''        ''  J  ^  ^   \  Right  of  ac- 

only  may  the  occupier  sue  for  the  personal  injury  tioa  by  re- 
he  has  sustained,  but  the  reversioner  may  also  sue 
for  the  injury  to  the  inheritance.  Thus,  in  the  case  of  The 
Metropolitan  Association  for  Improving  the  Dwellings  of  the 
Industrial  Classes  v.  Fetch,'  it  was  held  that  a  hoarding,  by 
which  ancient  light  was  obstructed,  might  be  of  such  a  per- 
manent character,  and  might  be  productive  of  such  injury  to 
a  reversionary  estate  in  a  house,  as  to  enable  the  reversioner 
to  sue  for  the  obstruction,  for  his  right  might  be  thereby  pre- 
judiced, as,  for  instance,  if  the  hoarding  was  put  up  in  denial 
of  the  right  to  light ;  a  declaration,  therefore,  which  alleged 
that  the  plaintiff  was  entitled  to  the  reversion  in  a  house 
in  which  there  were  windows  through  which  the  light  and 
air  ought  of  right  to  have  entered,  and  that  the  defendant 
erected  a  hoarding  whereby  the  light  and  air  was  prevented 
entering  the  said  windows,  and  the  said  house  was  rendered 
dark  and  unfit  for  habitation  b?/  means  of  ivliich  the  plaintiff 
was  injured  in  his  reversionary  estate,  was  held  to  be  good, 
and  to  show  a  cause  of  action.  So,  in  the  case  of  Kidgill  v. 
Moor,™  it  was  held  that  a  reversioner  might  maintain  an  ac- 
tion for  the  locking  of  a  gate  across  a  way,  for  that  such  an 
obstruction  might  be  injurious  to  his  reversionary  interest. 
In  Jesser  v.  Gifford,"  also,  it  was  held  that  if  the  value  of  the 
reversionary  interest  in  a  house  is  so  diminished  by  the  ob- 

*  Simpson  v.  Savage,  1  C.  B.  N.  S.  347;  26  L.  J.  C.  P.  50;  Metropoli- 
tan Association  v.  Fetch,  5  C.  B.  N.  S.  504;  27  L.  J.  C.  P.  330.  See 
Wilson  V.  Townend,  1  Dr.  &  Sm.  324;  30  L.  J.  Ch.  25;  Parker  v.  Fram- 
ingham,  8* Met.  260;   Scheuley  v.  Commonwealth,  36  Penn.  St.  59. 

'  5  C.  B.  N.  S.  504;  27  L.  J.  C.  P.  330;  Shadvvell  v.  Hutchinson,  3  C. 
&  P.  615;  Same  v.  Same,  2  B.  &  Ad.  97;  Bedingfield  v.  Onslow,  3  Lev.  209. 

""  9  C.  B.  364;  19  L.  J.  C.  P.  177,  approved  in  Richardson  v.  Bigelow, 
15  Gray,  159;  Hopwood  v.  Schofield,  2  Moo.  &  Rob.  34  ;  Bell  v.  Midland 
Railway  Co.  10  C.  B.  N.  S.  287  ;  30  L.  J.  C.  P.  273 ;  Simpson  v.  Savage, 
1  C.  B.  N.  S.  347 ;  26  L.  J.  C.  P.  50. 

»  4  Burr.  2141.     See,  however,  Battishill  v.  Reed,  18  C.  B.  696. 


360  DISTURBANCE   OF  EASEMENTS. 

struction  of  ancient  lights  that  it  would  sell  for  a  smaller  sum 
than  it  would  have  sold  if  the  lights  had  not  been  obstructed, 
an  action  will  lie  at  the  suit  of  the  reversioner.  But  an  ac- 
tion will  not  lie  at  the  suit  of  a  reversioner  against  a  tres- 
passer who  enters  his  land  for  the  purpose  of  asserting  a 
right  to  a  way  ;  for  such  an  act  during  a  tenancy  is  not  inju- 
rious to  the  reversionary  estate,  inasmuch  as  it  cannot  form 
evidence  of  a  right  against  the  reversioner."  It  may  be  no- 
ticed that  in  the  case  of  Bell  v.  Midland  Railway  Company/ 
Mr.  Justice  Willes  remarked,  that  an  act  may  be  permanently 
injurious  so  as  to  entitle  a  reversioner  to  sue  by  affecting  ten- 
ants ;  thus,  he  added,  an  action  on  the  case  lies  by  a  man  "  if 
his  tenants  are  impoverished  by  distresses  to  come  to  another 
court  (Com.  Dig.  tit.  Action  on  the  Case  for  a  Disturbance, 
A.  6)  ;  "  and  "  if  he  threaten  the  tenants  of  another  whereby 
they  depart  from  their  tenures  (lb.  Malicious  Misfeasance, 
A.  6)." 

An  action  will  lie  for  continuing  as  well  as  for  creating  any- 
Riffhtof  -  t^^'^g  ^y  which  an  easement  is  disturbed,  and  if  the 
tion  for        disturbance  of  an  easement  is  continued  after  an  ac- 

continuing        •         i  i  i  i  it  i     c 

a  disturb-  tion  has  been  brought  and  damages  recovered  lor 
^^^^'  the  original  act  of  disturbance,  a  second  action  may 

be  brought  for  the  continuance,  and  the  judgment  in  the  first 
action  is  no  bar  to  the  right  to  biing  the  second,  whether  it 
be  at  the  suit  of  the  occupier  of  the  dominant  tenement  or  of 
the  reversioner.' 

BREACH  OF  CONTRACT  FOR  AN  EASEMENT. 

Although  an  easement  can  be  created  only  by  deed,  and  no 
interest  in  the  natui-e  of  an  easement  can  be  conferred  by  a 
writing  not  under  seal,  yet  an  agreement  in  writing  only  may 
be  good  as  an  agreement,  and  the  parties  thereto  may  be  en- 

"  Baxter  v.  Taylor,  4  B.  &  Ad.  72.  But  see  Tucker  v.  Newman,  11  Ad. 
&E1.  40;  9  L.J.N.  S.  Q.  B.  1. 

■P  10  C.  B.  N.  S.  at  p.  307  ;  30  L.  J.  C.  P.  at  p.  281. 

«  Shad  well  v.  Hutchinson,  2  B.  &  Ad.  97;  Johnson  v.  Long,  Carth.  455; 
Ptosewell  V.  Prior,  2  Salk.  460 ;  6  Mod.  116  ;  12  Mod.  635  ;  Saxby  v.  Man- 
chester and  Sheffield  Railway  Co.  L.  R.  4  C.  P.  198;  38  L.  J.  C.  P.  153. 


EASEMENTS  GENERALLY.  361 

titled  to  sue  for  any  breach.  In  the  case  of  Smart  v.  Jones,'" 
one  Hill  agreed  in  writing,  not  under  seal,  that  a  certain  man, 
Lewis,  might  dig  and  carry  away  cinders  from  a  cinder-tip, 
the  property  of  him.  Hill,  on  payment  of  a  certain  price. 
The  breach  of  agreement  alleged  was,  that  the  cinders  were 
not  the  property  of  Hill,  and  that  Lewis  was  prevented  tak- 
ing them.  It  was  urged  for  the  defence  that  the  agreement 
was  void,  it  being  an  attempt  to  make  a  grant  of  a  profit  d 
prendre  by  an  instrument,  not  under  seal ;  but,  on  the  other 
hand,  it  was  said,  that  although  an  easement  could  not  be 
conveyed  without  a  deed,  there  might  be  a  good  verbal  agree- 
ment to  convey  an  easement  if  it  were  not  for  the  statute  of 
frauds,  and  that  a  distinction  existed  between  an  action  for  a 
breach  of  an  agreement  to  give  an  easement  and  an  action  to 
maintain  an  easement  properly  created,  which  distinction  was 
pointed  out  by  Alderson,  B.,  in  delivering  the  judgment  of 
the  court  in  Wood  v.  Leadbitter.''  The  court  gave  judgment 
for  the  plaintiff,  for  said  Erie,  C.  J.,  it  appeared  to  be  merely 
a  question  whether  when  a  party  to  a  contract  had  broken  his 
promise  an  action  would  lie  against  him  for  that  breach  ;  and 
Willes,  J.,  said  that  no  difficulty  arose  in  the  case  with  refer- 
ence to  the  law  respecting  the  grant  of  an  incorporeal  heredit- 
ament, for  that  it  was  not  asserted  that  Lewis  had  any  inter- 
est entitling  him  to  enter  and  take  the  cinders  ;  but  reliance 
was  placed  on  an  agreement  by  which  it  was  agreed  that 
Lewis  might  enter  for  that  purpose,  and  he  did  not  get  what 
he  was  to  have  under  the  contract  by  reason  of  a  breach 
thereof  by  Hill,  and  that  appeared  to  him  to  be  actionable. 

So  an  agreement  to  convey  an  easement,  if  otherwise  valid, 
may  be  enforced  in  equity,  and  specific  performance  com- 
pelled.^ 

It  has  already  been  remarked  that  if  the  owner  of  an  ease- 
ment exceeds  his  rightful  enjoyment,  or  does  anything  which 
would  after  long  user  produce  an  increased  right,  or  a  new 

»•  15  C.  B.  N.  S.  717;  33  L.  J.  C.  P.  154. 
»  13  M.  &  W.  838 ;  14  L.  J.  Exch.  161. 

1  Craig  V.  Craig,  2  Ontario  App.  Rep.  588  (1878).  And  see  Hervey  v. 
Smith,  22  Beav.  299. 


362  DISTURBANCE   OF  EASEMENTS. 

easement,  the  servient  owner  may  in  all  cases  obstruct  or 
Justifica-  prevent  the  excessive  enjoyment,  or  the  user  of  the 
tionforob-   thing,  which  would  enable  the  dominant  owner,  after 

structiniT  

an  ease-  a  time,  to  increase  his  riglit.'  This  right  to  ob- 
oifstriict-^'^  struct  the  encroachment,  as  it  may  be  termed,  does 
croach-'^""  not,  howcvcr,  entitle  the  servient  owner  to  obstruct 
ment.  •  the  rightful  enjoyment  also,  unless  it  is  impossible 
to  obstruct  the  encroachment  without  also  obstructing  the 
rightful  enjoyment."  If  it  is  impossible  when  obstructing  the 
encroachment  to  avoid  also  obstructing  the  rightful  user,  the 
servient  owner  is  often,  if  not  generally,  justified  in  obstruct- 
ing the  user  altogether.  Thus,  in  the  case  of  Cawkwell  v. 
Russell,"  Pollock,  C.  B.,  said  that  if  a  party  has  a  limited 
right  of  the  kind  in  question  in  that  action,  which  was  a  right 
to  pour  clear  water  through  a  drain,  and  exercises  that  lim- 
ited right  in  excess,  as  by  pouring  filth  through  the  drain,  the 
onl}^  remedy  and  the  only  way  whereby  the  party  can  protect 
himself  is  by  stopping  the  whole  ;  and  Alderson,  B.,  said  that 
if  a  man  has  a  right  to  send  clean  water  through  my  drain 
and  chooses  to  send  dirty  water,  every  particle  of  the  water 
ought  to  be  stopped,  because  it  is  all  dirty.  It  was  therefore 
determined  that  the  defendant  was  entitled  to  the  verdict  in 
the  action  for  obstructing  the  water.  It  was  formerly  held 
that  this  principle  of  law  applied  to  rights  to  light  acquired 
under  the  Prescription  Act  as  much  as  to  other  easements, 
and  that  if  an  owner  of  ancient  lights  enlarged  his  windows, 
or  opened  others  near  the  ancient  lights,  and  it  was  impos- 
sible to  obstruct  the  enlarged  portions  or  the  new  windows 
without  also  obstructing  the  ancient  lights,  the  servient  owner 
was  justified  in  obstructing  the  whole,  both  new  and  ancient ; 
but  it  was  subsequently  determined  that  rights  to  light  ac- 
quired under  the  Prescription  Act  stand  upon  a  different  foot- 
ing from  other  easements,  owing  to  the  peculiar  form  of  words 
employed  in  the  third  section  of  the  statute,  and  that  if  the 
new  lights  alone  cannot  be  obstructed,  the  servient  owner  is 

«  Ante,  chapter  III.  p.  281. 
t   "  Greenslade  v.  Halliday,  6  Bing.  379;  8  L.  J.  C.  P.  124. 
"  26  L.  J.  Exch.  34  (not  elsewhere  reported). 


EASEMENTS  GENERALLY.  363 

bound  to  submit  to  tlie  increased  burden,  and  is  not  justified 
in  obstructing  the  ancient  liglit.^ 

It  is  impossible  to  lay  down  any  general  rule  as  to  the  cases 
in  which  the  High  Court  of  Justice  will  interfere  by  When  the 
injunction  to  restrain  the  disturbance  of  an  ease-  restrain 
ment.  There  is  no  doubt  that  the  remedy  by  in-  ance"byin. 
junction  was  much  more  rare  formerly  than  it  is  at  junction. 
the  present  day,  for  the  tendency  of  the  Court  of  Chancery 
then  was  rather  to  leave  an  injured  party  to  his  remedy  at 
law ;  but  in  late  years  applications  to  a  court  of  equity  be- 
came more  frequent  than  formerly,  and  since  the  Court  of 
Chancery  had  power  conferred  upon  it  to  award  damages,^ 
suits  in  equity  to  a  great  extent  superseded  actions  at  com- 
mon law.  This  remark  applies,  perhaps,  to  obstruction  of 
light  more  than  to  disturbance  of  any  other  species  of  ease- 
ment, for  the  remedy  by  injunction  in  cases  of  obstruction,  or 
threatened  obstruction  of  light,  was  often  deemed  preferable 
and  more  efficacious  than  an  action  at  law.  Now  that  the 
Judicature  Act  has  produced  a  merger  of  the  courts  of  com- 
mon law  and  equity,  the  probable  effect  will  even  be  that 
scarcely  any  action  will  be  commenced  for  disturbance  of  an 
easement  without  a  claim  also  being  made  for  an  injunction. 
When  considering  the  several  species  of  easements,  and  the 
remedies  for  their  disturbance,  in  the  next  section  of  this 
chapter,  the  rules  which  have  been  laid  down  from  time  to 
time  by  the  Court  of  Chancery  for  its  guidance  in  granting 
injunctions  or  awarding  damages  in  cases  affecting  easements 
will  be  noticed,  for  even  under  the  altered  system  of  judi- 
cature the  principles  upon  which  the  Court  of  Chancery  acted 
may  continue  to  be  acted  upon,  and  it  is  scarcely  possible  to 
lay  down  a  general  rule  on  this  subject  that  shall  be  applica- 
ble to  easements  of  all  kinds.  It  may  be  remarked,  however, 
that  in  Heath  v.  Bucknall,^  Lord  Romilly,  M.  R.,  said  that  it 
may,  no  doubt,  be  laid  down  as  a  general  axiom  that  where  a 
man  possesses  a  right  to  light  and  air  over  the  property  of  his 

^  See  post,  title  Light. 

^  This  power  was  conferred  by  statute  21  &  22  Vict.  c.  27,  s.  2. 

vL.lR.8  Eq.  at  p.  6. 


864  DISTURBANCE   OF   EASEMENTS. 

neighbor,  the  obstruction  of  which  would  be  punishable  at  law 
in  the  shape  of  damages,  a  court  of  equity  will,  by  injunction, 
prevent  that  obstruction,  and  though  this  rule  was  limited  by 
the  master  of  the  rolls  to  cases  of  obstruction  of  light,  it  may 
not  very  inappropriately  be  applied  to  cases  of  disturbance  of 
other  easements,  if  the  injury  which  would  arise  from  the  dis- 
turbance would  be  of  a  permanent  character.  The  general 
axiom  of  the  master  of  the  rolls,  however,  does  not  contain  all 
the  essential  characteristics  which  were  requisite  to  induce  the 
Court  of  Chancery  to  grant  an  injunction  to  restrain  disturb- 
ance of  an  easement,  for  Kindersley,  V.  C,  in  the  case  of 
Wood  V.  Sutcliffe  ^  (not  laying  down  any  general  rule,  but 
limiting  his  judgment  expressly  to  the  case  before  the  court, 
which  was  a  suit  for  an  injunction  to  restrain  pollution  of 
water),  said :  "If  that  be  the  case  "  (that  is,  if  the  plaintiffs 
were  entitled  to  purity  of  water,  and  had  sustained  serious 
and  continuous  damage  from  the  pollution  by  the  defendants), 
"and  if  the  restraining  of  those  acts  by  injunction  will  restore, 
or  tend  to  restore  the  plaintiffs  to  the  position  in  which  they 
have  a  right  to  stand,  and  in  which  they  before  stood,  and  if, 
moreover,  the  injury  which  is  occasioned  by  the  works  com- 
plained of  is  of  such  a  nature  as  that  the  recovery  of  pecuni- 
ary damages  would  not  afford  an  adequate  compensation,  that 
is,  such  a  compensation  as  would,  though  not  in  specie,  in 
effect  place  the  plaintiffs  in  the  same  position  in  which  they 
stood  before ;  and  if,  moreover  (for  there  are  several  condi- 
tions), the  plaintiffs  do  not  sleep  upon  their  rights,  and  do  not 
acquiesce  either  actively  or  passively  in  the  acts  which  they 
now  complain  of,  but  use  due  diligence  and  vigilance  to  take 
such  steps  as  are  proper  and  necessary  for  the  vindication  and 
protection  of  their  rights,  —  if  these  conditions  occur  in  such 
a  case  as  that  which  is  now  presented  here,  the  plaintiffs,  the 
parties  so  injured,  I  conceive,  have,  as  a  general  rule,  a  right 
to  come  to  the  court  of  equity  and  say,  '  Do  not  put  us  to 
bring  action  after  action  for  the  purpose  of  recovering  dam- 

^  8  Eng.  L.  &  Eq.  217  ;  21  L.  J.  Ch.  at  p.  255.  See,  also,  per  Meilish, 
L.  J.,  in  Clowes  v.  The  Staffordshire  Potteries  Waterworks  Co.  L.  R.  8  Ch. 
App.  at  p.  142  ;  42  L.  J.  Ch.  at  p.  112. 


EASEMENTS  GENERALLY.  865 

ages,  but  interpose  by  a  strong  hand,  and  prevent  the  contin- 
uance of  those  acts  altogether,  in  order  that  our  legal  right 
may  be  protected  and  secured  to  us.'  " 

To  quote  another  passage  in  which  the  cases  when  the 
Court  of  Chancery  would  interfere  by  injunction  to  restrain 
the  disturbance  of  an  easement  or  other  similar  right,  if  the 
right  had  not  been  already  disturbed,  but  there  was  merely 
a  probability  that  it  would  be  disturbed,  Jessel,  M.  R.,  said, 
with  reference  to  a  right  of  shooting  which  was  the  subject  of 
the  case  before  the  court :  **  "  Now  what  are  the  principles 
upon  which  this  court  interferes  ?  I  take  it  that  in  order  to 
obtain  an  injunction  a  plaintiff  who  complains,  not  that  an 
act  is  an  actual  violation  of  his  right,  but  that  a  threatened  or 
intended  act,  if  carried  into  effect,  will  be  a  violation  of  the 
right,  must  show  that  such  will  be  an  inevitable  result.  It 
will  not  do  to  say  a  violation  of  the  right  may  be  the  result ; 
the  plaintiff  must  show  that  a  violation  will  be  the  inevitable 
result."  The  master  of  the  rolls  then  proceeded  to  cite  the 
cases  of  Haines  v.  Taylor,*  The  Emperor  of  Austria  v.  Day,'' 
and  Tipping  v.  Eckersley,*^  to  show  that  this  had  been  the 
principle  on  which  the  court  had  always  acted  in  such  cases. 

In  the  first  edition  of  this  book  the  power  of  the  Court 
of  Chancery,  under  the  act  21  &  22  Vict.  c.  27,  to   Damages 
award  damages  instead  of  granting:  an  injunction  for   —when 

.  »  •  1       1    •        1  •       awarded 

obstruction  of  an  easement  was  noticed  both  in  this   formerly 
place  and  in  the  subsequent  section  of  this  chapter   court^of 
where  the  disturbance  of  particular  easements  was   Chancery. 
considered.     Now  that  this  court  has  become  a  part  of  the 
High  Court  of  Justice,  under  the  Judicature  Act,  the  con- 
sideration of  this  topic  and  of  the  recent  cases  decided  before 
the  Judicature  Act,  becomes,  it  is  thought,  superfluous,  and  it 
is  therefore  omitted.     The  only  instance  in  which  it  is  con- 
ceived to  be  possible  that  the  cases  bearing  on  this  subject  can 
become  useful  are  those  in  which  an  owner  of  an  easement  has 

«  Pattisson  v.  Gilford,  L.  R.  18  Eq.  at  p.  262  ;  43  L.  J.  Ch.  at  p.  526. 

6  2  Ph.  209. 

«3  De  G.,  F.  &  J.  217. 

<*  2  K.  &  J.  264. 


366  DISTURBANCE   OF  EASEMENTS. 

sued  alone  for  an  injunction  without  claiming  damages,  and 
the  court  has  thought  the  case  not  suitable  for  an  injunction, 
but  for  pecuniary  compensation,  or  has  sued  both  for  an  in- 
junction and  damages.  In  the  first  instance  it  is  presumed 
no  such  power  as  that  which  was  given  by  the  act  21  &  22 
Vict.  c.  27,  is  needed,  for  that  the  power  of  amendment  given 
by  the  Judicature  Act  and  Rules  is  suflBcient  for  the  purpose, 
and  the  appropriate  remedy  for  the  mistake.  In  case,  how- 
ever, the  court  should  determine  to  be  guided  as  to  refusing 
an  injunction  and  making  any  such  amendment,  if  needed,  or 
in  giving  damages,  by  the  cases  in  which  the  Court  of  Chan- 
cery refused  injunctions  and  awarded  damages  under  the 
earlier  act,  the  principal  cases  are  given  in  the  note  below.^ 

INJUNCTIONS,   IN    AMERICA, 

are  not  usually  granted  until  the  complainant  has  first  tried 
and  settled  his  right  at  law,  unless  it  be  clearly  established 
by  the  evidence  that  the  defendant  is  liable  at  law.^ 

Where,  however,  some  irreparable  injury  would  be  done  by 
delay,  a  preliminary  or  temporary  injunction  is  often  granted, 
until  the  right  can  be  definitely  determined. ^ 

But  in  clear  cases  of  a  wrongful  act  on  the  part  of  the  de- 
fendant of  a  continuing  or  permanent  character,^  and  espe- 

«  Durell  V.  Pritcliard,  L.  R.  1  Ch.  App,  244 ;  35  L.  J.  Cb.  223  ;  Senior 
V.  Pawson,  L.  R.  3  Eq.  330;  Isenberg  v.  East  India  House  Estates  Co. 
33  L.  J.  Ch.  392;  Curriers'  Co.  v.  Corbett,  2  Dr.  &  Sm.  355;  City  of 
London  Brewery  Co.  v.  Tennant,  L.  R.  9  Ch.  App.  212;  43  L.  J.  Ch.  457; 
Aynsley  v.  Glover,  L.  R.  10  Ch.  App.  283;  44  L.  J.  Ch.  523. 

1  Dana  v.  Valentine,  5  Met.  8  ;  Ingraham  v.  Dunnell,  lb.  118;  Burnham 
V.  Kempton,  44  N.  H.  78,  an  elaborate  case;  Elmhirst  v.  Spencer,  2  Macn. 
&  Gord.  45.  See  Coe  v.  Winnipiseogee  Lake  Co.  37  N.  H.  254;  Cum- 
mings  V.  Barrett,  10  Cush.  186;  Rhea  v.  Forsyth,  38  Penn.  St.  507;  King 
V.  McCully,  38  lb.  76;  Jackson  v.  Newcastle,  33  L.  J.  N.  S.  Ch.  698;  Van 
Bergen  v.  Van  Bergen,  3  John.  Ch.  282;  Reid  v.  Gifford,  6  lb.  19;  Burden 
V.  Stein,  27  Ala.  104;  Bliss  v.  Kennedy,  43  111.  74;  Biddle  v.  Ash,  2 
Ashm.  211  ;  Bean  v.  Coleman,  44  N.  H.  539;  Prentiss  v.  Larnard,  11 
Vt.  135;  Wilson  v.  Cohen,  Rice  Eq.  80. 

^  See  Ingraham  v.  Dunnell,  5  Met.  118. 

8  See  Webb  v.  Portland  Man.  Co.  3  Sumn.  189;  Lyon  v.  McLaughlin, 
32  Vt.  426;  Carlisle  v.  Cooper,  6  C.  E.   Green,  568;  Merrifield  v.  Lorn- 


EASEMENTS  GENERALLY.  367 

cially  after  the  plaintiff  has  established  his  right  by  a  suit  or 
successive  suits  at  law,^  this  preventive  remedy  is  familiar  in 
American  jurisprudence. 

More  especially  will  equity  interpose  by  injunction  when  for 
want  of  jDrivity  between  the  owners  of  the  alleged  dominant 
and  servient  estates,  or  otherwise,  it  is  doubtful  whether  an 
action  at  law  could  be  maintained  ;  as  where  an  estate  has 
been  granted  upon  a  condition  or  covenant  that  no  buildings 
shall  be  erected  thereon,  or  only  in  a  certain  situation,  and 
both  estates  have  passed  into  other  hands,  equity  will  often 
enjoin  the  present  owner  of  the  servient  estate,  at  the  suit 
of  the  present  owner  of  the  dominant  estate,  even  though  it 
be  doubtful  whether  a  suit  at  law  would  lie.^ 

So  equity  is  more  ready  to  take  jurisdiction  where  an  ac- 
tion at  law,  if  successful,  would  furnish  but  inadequate  re- 
dress, as  in  cases  of  corrupting  water,  air,  the  health  and  com- 
fort of  the  parties,  &c.^ 

bard,  13  Allen,  16;  Stevens  v.  Stevens,  11  Met.  251;  Shields  v.  Arndt,  3 
Green  Ch.  234;  Gurney  v.  Ford,  2  Allen,  576;  Owen  v.  Field,  102  Mass. 
112;  Kirkendall  v.  Hunt,  4  Kan.  514. 

1  Hill  V.  Sayles,  12  Cush.  454. 

2  See  Barrow  v.  Richard,  8  Paige,  351;  Hubbell  v.  Warren,  8  Allen, 
173;  AVinfield  v.  Henning,  6  C.  E.  Green,  190;  Parker  v.  Nightingale, 
6  Allen,  341;  Peek  v.  Conway,  119  Mass.  546;  Gibert  v.  Peteler,  38  Barb. 
513;  Whitney  v.  Union  Railway  Co.  11  Gray,  359;  Brouwer  v.  Jones,  23 
Barb.  153;  Tallmadge  v.  East  River  Bank,  26  N.  Y.  105;  Brewer  v.  Mar- 
shall, 4  C.  E.  Green,  543;  Greene  v.  Creighton,  7  R.  I.  1;  Clark  v.  Mar- 
tin, 49  Penn.  St.  289;  Jeffries  v.  Jeffries,  117  Mass.  190;  Linzee  v.  Mixer, 
101  Mass.  512;  Schwoerer  v.  Boylston  Market  Association,  99  Mass.  285. 
It  is  not,  however,  in  every  case  of  a  conveyance  upon  a  condition  not  to 
build  on  the  lot  conveyed,  that  the  subsequent  grantees  from  the  same 
grantor  can  maintain  a  bill  for  an  injunction  against  subsequent  purchas- 
ers from  the  original  grantee,  who  violate  the  condition.  It  must  appear 
that  the  original  grantor  had  in  contemplation  the  division  of  the  land  into 
separate  lots  or  parcels,  which  would  be  held  by  different  owners,  or  that 
the  condition  was  inserted  in  the  deed  for  the  purpose  of  creating  a  restric- 
tion on  the  use  of  the  land  as  between  subsequent  grantees  of  different 
lots  or  parcels  thereof.  See  Jewell  v.  Lee,  14  Allen,  150;  Badger  v.  Board- 
man,  16  Gray,  559;  Dana  v.  Wentworth,  111  Mass.  291;  Sharp  v.  Ropes, 
110  Mass.  386.  Winfield  v.  Henning,  6  C.  E.  Green,  188,  seems  broader 
than  the  English  or  Massachusetts  decisions  on  this  point. 

3  See  Holsman  v.  Boiling  Spring  Bleaching  Co.  1  McCarter,  335 ;  Mer- 


368  DISTURBANCE  OF  EASEMENTS. 

But  equity  will  not  interfere  by  injunction  at  the  suit  of  a 
private  party  to  abate  Si2^uhlic  nuisance,  —  like  an  obstruction 
to  a  highway,  —  the  plaintiff  not  being  owner  of  any  land 
abutting  on  the  highway,  but  only  a  traveller,  and  injured 
therefore  only  in  common  with  the  general  public,  though 
perhaps  in  a  greater  degree.^ 

This  application  for  injunction  is,  of  course,  as  in  all  other 
cases,  addressed  to  the  sound  judicial  discretion  of  the  court,^ 
and  may  be  refused,  even  if  it  be  clear  that  the  party  has  a 
remedy  at  law. 

But  when  a  court  of  equity  does  take  jurisdiction  it  ac- 
quires complete  jurisdiction,  and  may  not  only  enjoin  against 
a  future  infringement,  but  may  also  abate  an  existing  obstruc- 
tion,^ and  likewise  award  damages  for  the  past.^ 

The  particular  application  of  these  principles  to  various 
kinds  of  easements  and  natural  rights  will  be  considered  in 
the  second  section  of  this  chapter. 

Sect.   2.  —  Oti  Bisturlance  of  Particular  Easements^  and  on 
Legal  Remedies  for  the  same. 

The  rules  and  principles  of  law  relating  to  disturbance  of 
easements  generally,  and  the  remedies  which  the  law  affords 
for  such  disturbance,  having  been  considered  in  the  preceding 
part  of  this  chapter,  it  is  the  purpose  of  the  present  section 
to  explain  when  and  to  what  extent  the  law  forbids  disturb- 
ance of  particular  kinds  of  easements  and  natural  rights,  as 
well  as  the  circumstances  under  which  the  court  will  restrain 
disturbance  by  injunction. 

rifield  y.  Lombard,  13  Allen,  16;  Bemis  v.  Upham,  13  Pick.  169.  And 
see  Richmond  Man.  Co.  v.  Atlantic  De  Laine  Co.  10  R.  I.  106. 

^  Hartshorn  v.  South  Reading,  3  Allen,  501.  And  see  Dawson  v.  St. 
Paul's  Ins.  Co.  15  Minn.  138. 

2  See  Wood  v.  Sutcliffe,  8  Eng.  Law  &  Eq.  217;  Owen  v.  Field,  12 
Allen,  457. 

8  Earl  V.  De  Hart,  1  Beasl.  Ch.  280;  Van  Bergen  v.  Van  Bergen,  2  John. 
Ch.  272;  Attorney  General  v.  N.  J.  Raih-oad  Co.  2  Green  Ch.  136  and 
note. 

*  Gurney  v.  Ford,  2  Allen,  576. 


AIR.  369 


AIR. 


It  has  been  shown  that  natural  rights  and  easements  with 
reference  to  air  are  of  two  kinds,  namely,  those  connected 
with  the  free  passage  of  air,  and  those  connected  with  purity 
of  air,  and  that  though  a  right  to  free  and  uninterrupted  pas- 
sage of  air  to  a  window  may  be  acquired  by  prescription  or 
grant,  yet  that  no  right  to  the  uninterrupted  flow  of  wind  to 
a.  windmill  can  be  so  acquired.  This  being  so,  no  Right  of 
action  can  be  maintained  by  the  owner  of  a  wind-   ^{=''°"  ^^.^ 

J  obstruction 

mill  against  a  landowner  who,  by  building,  obstructs  o^  a'>"- 
the  wind,  to  the  damage  of  the  mill  ;•''  but,  from  the  earliest 
times,  a  right  of  action  for  obstruction  of  air  which  would 
have  entered  a  window,  has  been  recognized  by  law,  if  a  right 
that  the  air  shall  be  uninterrupted  has  been  acquired  ; "  and 
the  court  will,  if  the  case  demands  it,  restrain  such  obstruc- 
tion by  injunction. 

It  has  been  one  of  the  objects  of  this  work  always  to  mark 
the  distinction  between  the  easements  of  free  pas-   j-^^g 
sage  of  light  and  free  passage  of  air.     It  has  been   sage  of  air 

1  11  -11  ..,,.„      and  light 

Bhown  that  they  are  acquired  by  prescription  by  dif-  distin- 
ferent  means,  rights  to  lights  being  acquired  under  ^""' 
the  Prescription  Act,  which  does  not  touch  rights  to  free  pas- 
sage of  air,  and  rights  to  free  passage  of  air  being  acquired 
by  prescription  at  common  law,  by  which  means  the  House 
of  Lords  has  said  rights  to  light  cannot  now  be  acquired.'^ 
Still  it  is  a  common  practice  to  couple  them  together  as  if 
they  were  one  and  the  same  easement ;  or,  as  if  they  were  at 
all  events  so  united  that  wh  }re  there  was  the  one  there  also 
was  the  other,  and  where  th'3  one  was  disturbed  there  also  was 
the  other.  This  is  an  error,  and  the  only  point  in  common  be- 
tween them  is  that  they  both  have  their  being  with  reference 
to  windows,  and  no  doubt  doors  and  other  openings  in  the 
walls  of  houses.  As  in  speaking  of  these  easements  it  has 
been  a  common  custom  to  couple  them  together,  so  in  suing 

/Webb  V.  Bird,  13  C.  B.  N.  S.  841;  31  L.  J.  C.  P.  335. 
c  Aldred's  case,  9  Coke,  58. 
*  Ante,  chap.  11.  sec.  2,  p.  210. 
24 


370  DISTURBANCE   OF   EASEMENTS. 

» 

for  obstruction  of  the  one  it  has  also  been  the  custom  to 
charge  the  offender  with  obstruction  of  both,  and  j^et  how  ob- 
vious it  is  that  the  cases  must  be  innumerable  in  which  the 
light  accustomed  to  come  to  a  window  is  obstructed  while  the 
air  is  in  no  appreciable  way  impeded.  It  is  strange  that  until 
recently  the  impropriety  of  this  practice  of  coupling  these 
rights  was  not  noticed  in  the  courts  ;  but  attention  has  now 
been  called  to  it  in  two  cases.  The  first  of  these  is  The  City 
of  London  Brewery  Company  v.  Tennant.'  In  that  case 
Lord  Selborne,  C,  said  at  the  end  of  his  judgment  that  the 
only  other  point  which  it  occurred  to  him  to  notice  was  about 
air.  He  had  observed  that  in  all  that  class  of  cases  a  formula 
had  crept  into  the  pleadings,  and  from  the  pleadings  had 
Injiinc-  passed  into  evidence,  as  to  air  as  well  as  to  light ; 
strahi  ob- '  but  the  nature  of  the  case  which  would  have  to  be 
air  — when  ^^^®  ^^^  ^^  injunction  by  reason  of  the  obstruction 
granted.  of  air  was  toto  coelo  different  from  a  case  of  light. 
Cases,  he  added,  are  very  rare  indeed,  and  must  be  very 
special,  such  as  to  involve  danger  to  health  or  something  very 
nearly  approaching  to  that,  to  justify  the  interference  of  the 
court  on  the  ground  of  the  diminution  of  air.  The  other 
case  is  Baxter  v.  Bower,''  in  which  it  was  said  that  all  the 
forms  of  injunctions  inserted  the  word  "  air "  as  well  as 
"  light,"  but  that  the  former  word  ought  not  to  be  inserted 
unless  it  was  specially  directed,  and  James,  L.  J.,  said  the 
court  never  puts  in  the  word  "  air  "  now  unless  it  is  really 
required. 

As  well  as  for  the  obstruction  of  the  free  passage  of  air, 
Right  of  when  a  right  to  free  passage  has  been  acquired,  an 
poiiutioa"^  action  will  lie  for  its  pollution,  for  purity  of  air  is  a 
of  air.  natural  right ;  if,  therefore,  the  owner  of  land,  though 
making  a  perfectly  legitimate  use  of  his  own  property,  pol- 
lutes the  air  which  passes  to  the  land  of  another  person  in 
an  unjustifiable  manner,  the  latter  can  maintain  an  action 
against  him  to  recover  damages,  or  he  may  obtain  an  injunc- 

'  L.  R.  9  Ch.  App.  218;  43  L.  J.  Ch.  457. 
•'  44  L.  J.  Ch.  625  (not  elsewhere  reported). 


AIR.  371 

tion  to  restrain  the  pollution.*  In  Dana  v.  Valentine  ^  it  was 
held  that  an  injunction  would  not  be  granted  in  favor  of  the 
owner  of  vacant  lots,  to  restrain  the  carrying  on  some  offen- 
sive trade  in  the  vicinity ;  since  there  being  no  certainty  that 
any  dwellings  would  ever  be  erected  on  such  vacant  lots,  or,  if 
so,  at  what  future  time,  there  was  no  necessity  for  such  an 
extraordinary  remedy,  to  require  which  the  injury  must  act- 
ually exist,  or  the  danger  of  it  be  so  certain  and  immediate  as 
to  amount  to  a  present  injury.  It  is  to  be  noticed  that  it  is 
only  when  air  is  polluted  in  an  unjustifiable  manner  Pollution 
that  a  landowner  has  a  remedy  for  the  nuisance  in-  |J{,"•^s^ig  . 
flicted  upon  him,  and  that  it  is  not  in  every  instance,  ^le. 
nor  for  every  degree  of  pollution,  that  an  action  will  lie  ;  in 
every  instance  the  right  to  sue  depends  upon  the  extent  and 
nature  of  the  pollution,  and  the  circumstances  under  which 
the  pollution  is  produced.  It  was  said  by  Lord  Westbury  in 
the  case  of  St.  Helen's  Smelting  Company  v.  Tipping,'  which 
was  an  action  for  pollution  of  air  by  emission  of  noxious  gases 
from  copper  smelting  works :  "  If  a  man  lives  in  a  town,  it 
is  necessary  that  he  should  subject  himself  to  the  conse- 
quences of  those  operations  of  trade  which  may  be  carried 
on  in  his  immediate  locality,  which  are  actually  necessary  for 
trade  and  commerce,  and  also  for  the  enjoyment  of  property, 
and  for  the  benefit  of  the  inhabitants  of  the  town  and  of  the 
public  at  large.  If  a  man  lives  in  a  street  where  there  are 
numerous  shops,  and  a  shop  is  opened  next  door  to  him  which 
is  carried  on  in  a  fair  and  reasonable  way,  he  has  no  ground 
for  complaint  because  to  himself  individually  there  may  arise 
much  discomfort  from  the  trade  carried  on  in  that  shop.  But 
when  an  occupation  is  carried  on  by  one  person  in  the  neigh- 
borhood of  another,  and  the  result  of  that  trade,  or  occupa- 
tion, or  business,  is  a  material  injury  to  property,  then  there 

*  Aldred's  case,  9  Coke,  58  ;  Walter  v.  Selfe,  4  De  G.  &  Sm.  315;  20  L. 
J.  Ch.  433  ;  Beardmore  v.  Tredvvell,  3  Gif.  683;  31  L.  J.  Ch.  892  ;  Tip- 
ping V.  St.  Helen's  Smelting  Co.  L.  R.  1  Ch.  App.  66;  Crump  v.  Lambert, 
L.  R.  3  Eq.  409;  Morley  v.  Pragnel,  Cro.  Car.  510. 

1  5  Met.  12. 

'  11  H.  L.  C.  at  p.  650;  35  L.  J.  Q.  B.  at  p.  72. 


372  DISTURBANCE   OF   EASEMENTS. 

unquestionably  arises  a  very  different  consideration."  This 
being  the  case,  it  becomes  very  material  to  determine  under 
what  circumstances  pollution  of  air  is  justifiable. 

In  the  first  place,  it  may  be  taken  as  a  rule  that  the  fact 
Polluting  that  the  air  is  more  or  less  polluted  by  other  persons 
*"^r'^im-  ^^^^^  "°^  justify  a  man  in  increasing  that  pollution, 
pure.  Thus,  in  the  cast  of  Tipping  v.  St.  Helen's  Smelting 

Company,  above  noticed,  the  jury  found  the  existence  of  the 
injury,  and  the  only  ground  on  which  it  was  asked  that  the 
verdict  might  be  set  aside  and  that  a  new  trial  might  be  di- 
rected, was,  that  the  whole  neighborhood  where  the  copper 
smelting  works  were  carried  on  was  a  neighborhood  more  or 
less  devoted  to  manufacturing  purposes,  and  therefore  it  was 
said  that,  inasmuch  as  the  copper  smelting  was  carried  on  in 
what  was  called  a  fit  place,  it  might  be  carried  on  with  impu- 
nity, although  the  result  might  be  the  utter  destruction,  or 
the  very  considerable  diminution,  of  the  value  of  the  plain- 
tiff's property.  It  was  held  that  that  was  not  a  sufficient 
reason  for  setting  aside  the  verdict  of  the  jury,  which  was  in 
favor  of  the  plaintiff."*  The  rule  in  this  respect,  with  regard 
to  air,  is  the  same  as  that  in  the  case  of  water,  for  the  fact 
that  many  other  persons  pour  filthy  matter  into  a  stream,  and 
so  render  the  water  unfit  for  use,  does  not  justify  a  manufact- 
urer in  adding  to  the  pollution." 

The  circumstance  that  a  person  comes  to  a  place  where  the 
Coming  to  air  is  already  polluted,  is  not  of  itself  sufficient  to  de- 
whereairis  P^i^®  ^^^^  ^^  ^^^^  right  to  purity  of  air,  for  purity  of 
polluted.  air  is  a  natural  right  incident  to  the  possession  of 
land,  and  cannot  be  destroyed  except  by  an  adverse  right  to 
pollute  the  air  acquired  by  another  person.  A  right  to  pol- 
lute the  air  has  been  shown  to  be  an  easement  which  can  be 
acquired  only  by  grant  or  by  prescription  —  that  is,  when  an 
uninterrupted  practice  of  polluting  has  been  continued  for 
twenty  years ;  the  mere  fact,  therefore,  of  the  first  comer 
erecting  a  factory  and  polluting  the  air,  does  not  give  him  any 

•»  See,  also,  Cooke  v.  Forbes,  L.  R.  5  Eq.  166  ;  37  L.  J.  Ch.  178. 
"  Crossley  &  Sons  (Limited)  v.  Lightowler,  L.  R.  2  Ch.  App.  478;  36 
L.  J.  Ch.  584. 


AIR.  873 

right  to  continue  that  pollution  to  the  nuisance  of  a  new 
comer  to  the  neighborhood  :  ^  and  the  latter,  until  an  adverse 
easement  is  gained,  may  rest  upon  his  natural  right  and  sue 
for  the  pollution.  The  case  of  Bliss  v.  Hall"  was  an  action 
for  polluting  the  air  by  melting  tallow  and  making  candles  ; 
and  the  defence  set  up  in  the  plea  was,  that  the  defendant 
possessed  his  candle  factory  for  three  years  before  the  plaintiff 
became  possessed  of  his  house,  and  that  when  the  defendant 
first  became  possessed  of  his  factory,  the  furnaces  and  stoves 
were  erected,  and  the  defendant,  from  the  time  when  he  so 
became  possessed  of  the  factory  till  the  plaintiff  became  pos- 
sessed of  his  house,  had  always  carried  on  his  trade  of  making 
candles.  To  this  plea  there  was  a  demurrer,  and  it  was  held 
that  the  matters  alleged  for  the  defence  formed  no  answer  to 
the  complaint  in  the  declaration,  for  that  the  plaintiff  came 
to  the  house  he  occupied  with  all  the  rights  which  the  com- 
mon law  affords,  and  that  one  of  them  was  a  right  to  whole- 
some air,  so  that,  unless  the  defendant  could  show  a  prescrip- 
tive right  to  pollute  the  air  which  was  accustomed  to  flow  to 
the  plaintiff's  house,  the  plaintiff  was  entitled  to  judgment. 
So,  also,  Vice  Chancellor  Wood,  in  the  case  of  Tipping  v. 
St.  Helen's  Smelting  Company,^  held  that  the  fact  of  the 
plaintiff  having  come  to  the  nuisance  did  not  disentitle  him 
to  the  aid  of  the  Court  of  Chancery  to  stop  the  pollution  of 
the  air  by  injunction. 

Pollution  of  air  is  very  frequently  produced   by  the  carry- 
ing on  of  trades  which   are  in  themselves  perfectly    Unavoid- 
lawful,  and,  until  they  cause  annoyance  to  neighbor-   able  poiiu- 

11  e  e  \  •        •  r      tionbv  car- 

ing landowners,  altogether  free  from   objection.     It   rying"on 

is  essential  for  the  welfare  of  the  nation  that  these 

trades  should  be  carried  on  somewhere,  for  by  them  many  of 

the  ordinary  necessaries  of  life  are  supplied  ;  but  it  is  in  many 

instances  unavoidable  that  the  comfort  of  persons  who  dwell 

1  Commonwealth  v.  Upton,  6  Gray,  473,  overruling  a  dictum  to  the 
contrary  in  Rex  v.  Cross,  2  C.  &  P.  484.  See  Rex  v.  Neville,  Peake,  125; 
Stokoe  V.  Hew  Singers,  8  El.  &  Bl.  31. 

°  4  Bing.  N.  C.  183;  7  L.  J.  N.  S.  C.  P.  122. 

i'L.  R.  1  Ch.  App.  at  p.  67. 


374  DISTURBANCE   OF   EASEMENTS. 

in  the  neighborhood  should  be  disturbed,  and  even  that  prop- 
erty should  be  injured  by  the  noxious  fumes  which  are  pro- 
duced by  their  means.  Numerous  trades  of  this  kind,  which 
are  more  or  less  detrimental,  might  be  named,  but  it  will  suf- 
fice to  mention  brick-burning,  candle-making,  and  copper- 
smelting,  as  instances  ;  and  it  becomes  a  very  important  ques- 
tion whether  and  under  what  restrictions  (if  any)  these  trades 
are  to  be  carried  on,  and  whether  persons  in  the  vicinity  must 
submit  to  the  injury  thereby  caused,  or  whether  the  right  to 
purity  of  air  is  so  supreme  that  the  law  will  protect  that  right 
g^lg  ^  at  all  risks,  even  though  trade  must  be  entirely  sus- 
Bariow.  pended.  Hole  v.  Barlow  ^  was  one  of  the  first  cases 
in  which  this  question  was  raised,  and  it  is  worthy  of  attention 
(though  it  was  subsequently  overruled),  as  it  was  the  first  of 
a  series  of  cases  by  which  the  law  on  this  subject  was  event- 
ually determined.  The  action  was  for  nuisance  created  by 
brick-burning.  The  facts  were  that  the  plaintiff  occupied  a 
house  in  a  newly-made  road  abutting  upon  a  field  belonging 
to  the  defendant,  and  that  the  defendant,  preparatory  to  the 
building  of  certain  houses,  excavated  clay  for  bricks,  which 
he  caused  to  be  placed  in  three  clamps  for  burning  in  the 
field  near  to  the  plaintiff's  house,  one  of  them  being  within 
thirty  feet  of  it ;  and  it  was  urged  on  the  part  of  the  defend- 
ant that  the  nuisance  was  not  actionable,  as  the  brick-burning 
was  in  a  convenient  place,  and  not  done  wantonly  and  with 
intent  to  injure  and  annoy  the  plaintiff.  Byles,  J.,  directed 
the  jury  that  to  entitle  the  plaintiff  to  succeed  it  was  not 
necessary  that  the  nuisance  should  be  injurious  to  health,  for 
it  was  enough  if  it  rendered  the  enjoyment  of  life  and  prop- 
erty uncomfortable,  but  that  it  is  not  everybody  whose  enjoy- 
ment of  life  and  property  is  rendered  uncomfortable  by  the 
carrying  on  of  an  offensive  or  noxious  trade  who  can  bring  an 
action,  for  if  that  were  so,  the  neighborhood  of  Birmingham 
and  Wolverhampton,  and  other  great  manufacturing  towns  of 

9  4  C.  B.  N.  S.  334;  27  L.  J.  C.  P.  207.  In  the  case  of  Cavey  v.  Led- 
bitter  (13  C.  B.  N.  S.  at  p.  472),  Willes,  J.,  is  reported  to  have  said  that 
the  latter  part  of  the  judgment  in  Hole  v.  Barlow  did  not  seem  to  be  cor- 
rectly reported. 


AIR.  375 

England  would  be  full  of  persons  bringing  actions  for  nui- 
sances arising  from  the  carrying  on  of  noxious  and  offensive 
trades  in  their  vicinity  to  the  great  injury  of  the  manufactur- 
ing and  social  interests  of  the  community.  The  learned  judge 
added  that  he  apprehended  the  law  to  be  that  no  action  lies 
for  the  reasonable  use  of  a  lawful  trade  in  a  convenient  and 
proper  place,  even  though  some  one  may  suffer  annoyance 
from  its  being  so  carried  on.  He  then  directed  the  jury  that 
the  place  was  convenient  and  proper,  and  that  the  action 
would  not  lie.  The  verdict  was  for  the  defendant,  and  a  rule 
was  obtained  for  a  new  trial,  which  was  afterwards  discharged 
on  the  ground  that  the  direction  to  the  jury  was  right. 
Willes,  J.,  on  the  arguing  of  the  rule,  said  that  the  common 
law  right  which  every  proprietor  of  a  dwelling-house  has  to 
have  the  air  uncontaminated  and  unpolluted  is  subject  to  this 
qualification,  that  necessities  may  arise  for  an  interference 
with  that  right  pro  bono  publico  to  this  extent,  that  such  in- 
terference be  in  respect  of  a  matter  essential  to  the  business 
of  life,  and  be  conducted  in  a  reasonable  and  proper  manner, 
and  in  a  reasonable  and  proper  place.'' 

In  the  subsequent  case  of  Bamford  v.  Turnley,*  in  the  Ex- 
chequer Chamber,  the  decision  in  the  case  of  Hole  Bamford  v. 
V.  Barlow,  was  overruled,  the  court,  however,  being  Burnley. 
divided  in  opinion.  Cockburn,  C.  J.,  had  directed  the  jury 
in  that  case,  on  the  authority  of  Hole  v.  Barlow,  that  if  they 
were  of  opinion  that  the  spot  on  which  the  defendant  had 
burnt  his  bricks  was  a  proper  and  convenient  spot,  and  that 
the  burning  of  bricks  under  the  circumstances  of  the  case  was 

»•  In  the  case  of  Beardmore  v.  Tredwell  (3  Gif.  683;  31  L.  J.  Ch.  892), 
Vice  Chancellor  Stuart  said  that  the  expressions  used  by  Mr.  Justice 
Willes  in  Hole  v.  Barlow  are  applicable  to  the  case  of  public  necessity- 
only,  but  that  it  is  taking  too  narrow  a  view  to  say  that  public  necessity 
is  the  only  ground  upon  which  the  Court  of  Chancery  may  be  induced  not 
to  interfere  to  restrain  the  violation  of  that  which  was  clearly  in  the  first 
instance  a  private  right. 

s  3  B.  &  S.  66;  31  L.  J.  Q.  B.  286.  In  Cavey  v.  Ledbitter  (13  C.  B. 
N.  S.  470;  32  L.  J.  C.  P.  104),  Keating,  J.,  said:  "In  Bamford  v.  Turn- 
ley,  in  the  Exchequer  Chamber,  I,  who  was  a  consenting  party,  understood 
Hole  V.  Barlow  to  be  overruled."  , 


376  DISTURBANCE   OF   EASEMENTS. 

a  reasonable  use  by  the  defendant  of  his  own  land,  the  de- 
fendant was  entitled  so  to  use  his  own  land,  and  would  be 
entitled  to  a  verdict  independently  of  the  small  matter  of 
whether  there  was  an  interference  with  the  plaintiff's  comfort 
or  whether  there  was  not.  In  the  Exchequer  Cham- 
of  Pollock,  ber,  Pollock,  C.  B.,  thought  this  direction  substan- 
Excii'equer  tially  right,  and  expressed  his  opinion  that  the  nui- 
Chamber.  g^nce  for  which  an  action  will  lie  is  not  capable  of 
any  legal  definition  which  would  be  applicable  to  all  actions 
and  useful  in  deciding  them,  for  that  the  question  depended 
entirely  upon  surrounding  circumstances  —  the  place  where; 
the  time  when  ;  the  alleged  nuisance,  what ;  the  mode  of  com- 
mitting it,  how  ;  and  the  duration  of  it,  whether  temporary  or 
permanent,  occasional  or  continual —  so  as  to  make  it  impos- 
sible to  lay  down  any  rule  applicable  to  every  case.  Under 
the  circumstances  of  the  case,  and  as  the  jury  had  found  that 
the  use  of  the  land  for  brick-making  was  a  reasonable  use,  he 
thought  the  judgment  of  the  court  below,  which  had  refused 
a  rule  to  show  cause  why  the  verdict  found  for  the  defendant 
should  not  be  set  aside  and  a  verdict  entered  for  the  plain- 
tiff, should  be  affirmed.  Bramwell,  B.,  thought  the 
of  Biani-  judgment  should  be  reversed  on  the  ground  that  the 
^^  '  '  defendant  had  done  that  which,  if  done  wantonly  or 
maliciously,  would  be  actionable  as  being  a  nuisance  to  the 
plaintiff's  habitation  by  causing  a  sensible  diminution  of  the 
comfortable  enjoyment  of  it,  and  that  that  called  on  the  de- 
fendant to  justify  or  excuse  what  he  had  done,  which  he  had 
been  unable  to  do ;  he  thought  that  the  plaintiff  had  a  primd 
facie  case,  and  that  the  defendant  had  infringed  the  maxim. 
Sic  utere  tuo  ut  alienum  non  Icedas,  and  could  not  justify  his 
Judgment  wrong.  The  majority  of  the  court  —  Erie,  C.  J., 
j^orUy'of  Wilhams,  J.,  Keating,  J.,  and  Wilde,  B.  — also 
the  court,  thought  the  judgment  should  be  reversed,  and  these 
judges  united  in  giving  judgment.  Their  judgment  was  to 
the  effect  that  it  had  been  treated  as  a  doctrine  of  law  that  as 
the  jury  had  found  that  the  spot  where  the  bricks  were  made 
was  proper  and  convenient,  and  that  the  burning  of  the  bricks 
was  a  reasonable  use  of  the  land,  these  circumstances  consti- 


AIR.  377 

tuted  a  bar  to  the  action  ;  and  that  as  this  doctrine  was 
founded  on  the  decision  in  Hole  v.  Barlow,  it  was  a  question 
for  the  consideration  of  the  court  whether  that  case  was  well 
decided.  The  decision  in  Hole  v.  Barlow,  it  was  added,  was 
plainly  founded  on  a  passage  in  Com.  Dig.  tit.  Action  on  the 
Case  for  a  Nuisance,  (C),  which  is  in  the  following  words  : 
"  So  an  action  does  not  lie  for  a  reasonable  ■  use  of  any  right, 
though  it  be  to  the  annoyance  of  another ;  as  if  a  butcher, 
brewer,  &c.,  use  his  trade  in  a  convenient  place,  though  it  be 
to  the  annoyance  of  his  neighbor  ;  "  but  that  no  authority  was 
cited  by  Coniyns  for  this  dictum,  in  which  there  was  a  want 
of  precision,  especially  in  the  words  "  reasonable  "  and  "  con- 
venient," which  render  its  meaning  by  no  means  clear,  and  it 
might  be  doubted  whether  the  court,  in  Hole  v.  Barlow,  did 
not  misunderstand  it.  The  meaning  of  the  word  "  conven- 
ient," as  it  is  used  by  several  authorities,  was  then  consid- 
ered ;  and  the  judgment  continued,  that  it  seemed  that  just 
as  the  use  of  an  offensive  trade  will  be  indictable  as  a  public 
nuisance  if  it  is  carried  on  in  an  inconvenient  place,  i.  e.,  a 
place  where  it  greatly  incommodes  a  multitude  of  persons,  so 
it  will  be  actionable  as  a  private  nuisance  if  it  be  carried  on 
in  an  inconvenient  place,  i.  e.,  a  place  where  it  greatly  incom- 
modes an  individual  ;  and  that  if  this  be  the  true  construction 
of  the  expression  "  convenient"  in  the  passage  from  Comyns 
the  doctrine  contained  in  it  amounts  to  no  more  than  what 
has  long  been  settled  law,  namely,  that  a  man  may,  without 
being  liable  to  an  action,  exercise  a  lawful  trade,  as  that  of  a 
butcher,  brewer,  or  the  like,  notwithstanding  it  be  carried  on 
so  near  the  house  of  another  as  to  be  an  annoyance  to  him  in 
rendering  his  residence  there  less  delectable  or  agreeable  than 
it  otherwise  would  have  been,  provided  the  trade  be  so  con- 
ducted that  it  does  not  cause  what  amounts,  in  point  of  law, 
to  a  nuisance  to  the  neighboring  house.  In  Hole  v.  Barlow 
it  was  added  the  court  appeared  to  have  read  the  passage  as 
containing  a  doctrine  that  a  place  may  be  "  proper  and  con- 
venient "  for  the  carrying  on  of  a  trade,  notwithstanding  it  is 
a  place  where  the  trade  cannot  be  carried  on  without  causing 
a  nuisance  to  a  neighbor.     This  was  a  doctrine  which  had 


378  DISTURBANCE   OF  EASEMENTS. 

certainly  never  been  judicially  adopted  in  any  case  before, 
and  the  adoption  of  it  would  be  inconsistent  with  the  judg- 
ments pronounced  in  some  of  the  cases  cited  at  the  bar  during 
the  argument  of  the  case  then  under  consideration,  and  more 
especially  with  the  case  of  Walter  v.  Selfe.'  In  the  case  then 
before  the  court,  the  judgment  continued,  the  direction  to  the 
jury  pointed  to  a  further  condition,  namely,  if  the  burning  of 
the  bricks  was,  under  the  circumstances,  a  reasonable  use  by 
the  defendant  of  his  own  land  ;  it  remained  to  see  whether 
the  doctrine  adopted  in  Hole  v.  Barlow,  if  accompanied  with 
this  addition,  was  maintainable.  If  it  was  good  law  that  the 
fitness  of  the  locality  prevents  the  carrying  on  of  an  offensive 
trade  from  being  an  actionable  nuisance,  it  appeared  neces- 
sarily to  follow  that  this  must  be  a  reasonable  use  of  the  land ; 
but  if  it  was  not  good  law,  and  if  the  true  doctrine  was  that 
whenever,  taking  all  the  circumstances  into  consideration,  in- 
cluding the  nature  and  extent  of  the  plaintiff's  enjoyment  be- 
fore the  acts  complained  of,  the  annoyance  is  sufficiently  great 
to  amount  to  a  nuisance,  according  to  the  ordinary  rule  of 
law,  an  action  will  lie  whatever  the  locality  may  be,  then  the 
jury  cannot  properly  be  asked  whether  the  causing  the  annoy- 
ance was  a  reasonable  use  of  the  land.  If  such  a  question  is 
proper  in  an  action  for  corrupting  air,  a  similar  question 
should  be  asked  the  jury  in  actions  for  other  violations  of  the 
ordinary  rights  of  property,  e.  g.,  the  transmission  by  a  neigh- 
bor of  water  in  a  polluted  condition ;  and  so,  if  a  right  to 
light  had  been  acquired,  and  was  obstructed  by  a  building, 
the  question  should  be  asked  whether  the  obstructing  build- 
ing was  erected  in  a  convenient  and  proper  place,  and  in  the 
reasonable  enjoyment  by  the  defendant  of  his  own  land.  No- 
body had  ever  suggested  that  such  questions  might  be  put  to 
a  jury,  and  yet  it  was  difficult  to  see  why  such  questions 
should  not  be  left  to  a  jury  if  Hole  v.  Barlow  was  well  de- 
cided. The  court  was  of  opinion  that  the  decision  in  the 
case  of  Hole  v.  Barlow  was  wrong. 

The  last  case  on  this  subject  to  which  it  is  necessary  to  di- 
rect special  attention  is  The  St.  Helen's  Smelting  Company 
'  4  De  G.  &  Sm.  315  ;  20  L.  J.  Ch.  433. 


AIR.  379 

V.  Tipping,"  whicli  was  taken  to  tlie  House  of  Lords.  This  was 
an  action  for  erecting  and  using  copper-smelting  st.  Helen's 
works,  by  the  noxious  fumes  from  which  the  plaintiff's  co]^pany 
trees  were  killed  and  his  cattle  injured.  The  case  ''•  Tipping. 
was  tried  before  Mellor,  J.,  who  directed  the  jury  that  a  man 
has  no  doubt  certain  rights  which  he  may  exercise  on  his  own 
property,  and  within  the  limit  of  those  rights  he  may  do  any 
act  which  is  not  unlawful ;  he  may,  among  other  things,  erect 
a  lime-kiln,  if  it  is  in  a  convenient  place,  "  but  the  meaning  of 
the  word  '  convenient,' "  he  added,  "  I  shall  venture  to  inter- 
pret to  you  as  being  that  it  must  be  plain  that  he  will  not  do 
an  actionable  injury  to  another,  because  a  man  may  not  use 
his  own  property  so  as  to  injure  his  neighbor."  In  his  judg- 
ment in  the  House  of  Lords,  Lord  Westbury,  C,  explained 
that  there  is  a  difference  between  an  action  brought  for  a  nui- 
sance upon  the  ground  that  the  alleged  nuisance  produces  ma- 
terial injury  to  property,  and  an  action  brought  for  a  nuisance 
on  the  ground  that  the  thing  alleged  to  be  a  nuisance  is  pro- 
ductive of  sensible  personal  discomfort.  Whether  a  thing 
which  produces  mere  personal  discomfort  is  an  actionable 
nuisance,  depends  greatly  on  the  circumstance  where  the 
thing  occurs,  for  if  a  man  lives  in  a  town  he  must  submit  to 
the  consequences  of  those  operations  of  trade  which  may  be 
carried  on  in  his  immediate  locality,  which  are  actually  neces- 
sary for  trade  and  commerce,  also  for  the  enjoyment  of  prop- 
erty, and  for  the  benefit  of  the  inhabitants  of  the  town  and  of 
the  public  at  large  ;  and  if  a  man  lives  in  a  street  he  cannot 
complain  of  discomfort  which  is  caused  to  himself  individually 
by  the  business  carried  on  in  neighboring  shops ;  but  when  an 
occupation  is  carried  on  by  one  person  in  the  neighborhood  of 
another,  and  the  result  of  that  occupation  is  a  material  injury, 
the  case  is  very  different,  for  then  the  submission  which  is  re- 
quired in  the  case  of  mere  personal  discomfort  is  not  de- 
manded by  the  law. 

From  this  mass  of  cases  and  opinions  of  various  judges  it 
is  not  easy  to  extract  precisely  the  law  on  the  sub-   j^gg^ij.  ^f 
ject,  but  it  seems  in  the  first  place  that  all  the  dif-   authorities. 
"11  H.  L.  C.  642;  35  L.J.  Q.  B.  66. 


380  DISTURBANCE   OF   EASEMENTS. 

ficulty  wliicb  has  arisen  through  the  introduction  of  the  ques- 
tion, whether  a  place  where  a  trade  is  carried  on  is  "  conven- 
ient and  proper  "  for  the  purpose,  and  whether  the  purpose  is 
a  reasonable  use  by  the  owner  of  his  own  land,  may  be  put 
out  of  the  question,  for  if  a  place  is  convenient  and  proper 
for  the  purpose,  the  purpose  is  a  reasonable  use  of  the  land, 
and  the  use  cannot  be  reasonable  nor  the  place  convenient 
and  proper  if  an  actionable  injury  is  caused  to  a  neighbor. 
This  appears  to  be  arguing  in  a  circle,  for  after  all,  the  ques- 
tion is,  when  is  an  injury  caused  by  pollution  of  air  produced 
by  the  exercise  of  a  lawful  trade  actionable  ?  To  solve  this 
it  will  be  found  material  to  follow  the  distinction  pointed  out 
by  Lord  Westbury  in  the  case  of  The  St.  Helen's  Smelting 
Company  v.  Tipping,  between  pollution  of  air  which  causes 
mere  personal  discomfort,  and  pollution  of  air  which  produces 
material  injury  to  property  or  health.  To  take  the  latter 
case  first,  it  will  be  found  as  a  rule  that  unless  a  person  car- 
rying on  a  trade  has  acquired  as  an  easement  a  right  to  pol- 
lute the  air  to  such  an  extent,  and  in  such  a  manner  as  to  pro- 
duce material  injury  to  health  or  property,  such  pollution  is 
in  every  case  an  actionable  injury,  and  it  is  no  justification 
for  causing  such  injury  to  allege  that  it  was  caused  by  the  ex- 
ercise of  a  trade  which  was  carried  on  in  a  convenient  and 
proper  place,  and  was  a  reasonable  use  by  the  defendant  of 
his  own  land."  If,  on  the  other  hand,  mere  personal  discom- 
fort is  produced,  those  facts  may  justify  the  injury  produced, 
but  each  case  must  depend  upon  its  own  circumstances,  for 
every  man  has  a  right  that  the  air  shall  not  be  polluted  to 
such  an  extent,  and  in  such  a  manner,  as  to  interfere  mate- 
rially with  the  ordinary  comfort  of  human  existence,""  yet  a 
man  must  not  be  fastidious,  for  the  law  will  not  allow  him  to 

"  In  Cooke  v.  Forbes  (L.  R.  5  Eq.  166;  37  L.  J.  Ch.  178)  it  was  held 
that  if  a  person  manufactures  goods,  although  of  a  particularly  sensitive 
or  delicate  character,  it  is  a  wrongful  act  for  another  person  to  allow  nox- 
ious fumes  to  be  emitted  from  his  manufactory,  if  the  goods  of  the  former 
are  thereby  damaged. 

«>  Crump  V.  Lambert,  L.  R.  3  Eq.  409;  Morley  v.  Pragnel,  Cro.  Car. 
510;  Walter  v.  Selfe,  4  De  G.  &  Sm.  315;  20  L.  J.  Ch.  433. 


AIR.  381 

sue  for  trifling  or  temporary  annoyance,  and  the  locality  in 
which  he  dwells  must  be  taken  into  consideration  in  deter- 
mining whether  he  has  a  right  of  action."^ 

In  cases  of  pollution  of  air  there  is  a  question  of  public 
nuisances  always  to  be  remembered  as  well  as  the  pu^iic  uu}. 
private  rights  of  individuals,  and  it  is  apprehended  sances. 
that  although  pollution  may  have  continued  for  twenty  years 
so  as  to  afford  a  prescriptive  right  against  a  neighbor,  yet  that 
such  user  affords  no  right  against  the  public,  and  that  an  in- 
dictment will  lie  for  the  nuisance.^ 

Pollution  of  air  is  not  usually  an  injury  for  which  a  rever. 
sioner  can  sue,  for  the  annoyance  is  in  most  cases  of   j,.  ^    . 
a  temporary  nature,  affecting  only  the  occupier  of  a   versioner 

,  ,  ,  ..  ,.,.  to  sue  for 

house  and  causing  no  injury  to  the  inheritance,  pollution  of 
The  case  of  Simpson  v.  Savage  ^  was  an  action  for  ^"^" 
pollution  of  air  by  smoke  from  a  chimney  of  a  factory,  and  it 
was  urged,  on  the  part  of  the  plaintiff,  who  was  a  rever- 
sioner, that  though  an  action  for  pollution  of  air  can  ordina- 
rily be  maintained  by  the  occupier  of  a  house  only,  yet  in 
that  case  the  reversionary  estate  was  injured  because  the  fac- 
tory and  chimney  were  permanent  and  injurious  to  the  inher- 
itance ;  but  it  was  held  the  action  would  not  lie,  for  the  erec- 
tion of  the  chimney  alone  was  not  an  injurious  or  wrongful 
act,  and  if  it  had  happened  never  to  be  used  no  injury  could 
have  arisen,  but  that  it  was  the  use  made  of  the  chimney 
which  caused  the  injury,  and  that  was  the  real  subject-matter 
of  complaint.  It  was  argued,  also,  that  the  nuisance  from 
the  smoke  would  cause  the  reversion  to  sell  for  less  than  it 
would  have  sold  had  the  chimney  not  been  there,  but  it  was 
held  that  this  circumstance  would  not  entitle  the  reversioner 
to  sue,  for  that  if  it  was  a  fact  that  the  reversion  would  sell 

*  Swaine  v.  Great  Northern  Railway  Co.  33  L.  J.  Ch.  399  (not  else- 
where reported;  St.  Helen's  Smelting  Co.  v.  Tipping,  per  Lord  West- 
bury,  C,  11  H.  L.  C.  642;  35  L.  J.  Q.  B.  66.  See,  however,  Benjamin 
t?.  Storr,  L.  R.  9  C.  P.  400;  43  L.  J.  C.  P.  162. 

^  See  Commonwealth  v.  Upton,  6  Gray,  473,  a  valuable  case  directly  in 
point. 

«'  1  C.  B.  N.  S.  347;  26  L.  J.  C.  P.  50. 


382  DISTURBANCE   OF  EASEMENTS. 

for  less,  it  was  not  on  account  of  anything  that  had  been 
done,  bat  on  account  of  the  apprehension  of  future  annoy- 
ance. 

Although  the  circumstances  of  a  case  may  be  such  that  the 
Acquies-  court  would,  in  its  discretion,  think  it  a  case  fit  for 
^^oHution  ^^^®  grant  of  an  injunction  to  restrain  pollution  of  air, 
of  a'""-  it  is  always  essential  for  the  obtaining  of  such  assist- 
ance that  the  party  injured  shall  not  have  acquiesced  in  the 
pollution,  nor  have  slept  upon  his  rights ;  for  if  he  shall  have 
done  so,  the  court  will  refuse  an  injunction,  though  it  would 
probably  allow  him  to  recover  damages  for  the  injury.  Ac- 
quiescence, to  disentitle  a  person  to  an  injunction,  may  be 
given  in  various  ways,  for  not  only  may  consent  be  given  in 
express  terms,  but  it  may  frequently  be  inferred  from  acts 
or  silence.  Thus,  if  a  landowner  passively  suffers  the  owner 
of  adjoining  ground  to  erect  a  factory,  the  natural  result  of 
which  will  be  that  the  air  will  be  polluted  when  the  factory  is 
used,  the  court  will  refuse  to  prevent  the  pollution.  It  has  fre- 
quently been  decided  that  when  works  which  are  alleged  to  pol- 
lute the  air  have  been  suffered  to  remain  for  several  years,  that 
is  considered  such  laches  as  to  preclude  a  person  from  having 
relief  in  a  court  of  equity,  without  the  party  will  first  estab- 
lish his  right  in  a  court  of  law.^  If,  however,  a  landowner, 
by  acquiescence  in  the  erection  of  a  factory,  has  lost  his  right 
to  the  aid  of  the  court  to  prevent  pollution  of  the  air  when 
the  factory  is  used,  he  is  not  generally  debarred,  by  that  ac- 
quiescence alone,  from  obtaining  its  aid  if  it  is  proposed  to 
extend  the  factory,  or  if  the  extent  of  the  accustomed  pollu- 
tion is  suddenly  increased.^ 

LIGHT. 

The  right  to  light,  like  the  right  to  the  free  passage  of  air 
Right  of  and  water,  is  an  easement  of  a  negative  character, 
obstrucUon  ^^^^''^  ^^'  ^^  ^^  ^^°^  ^  right  entitling  the  dominant  owner 
of  J'giit-       to  do  something  on  the  servient  tenement,  but  it  is 

1  See  Weller  v.  Smeaton,  1  Cox,  102;  Reid  v.  Giffdrd,  6  John.  Ch.  19; 
Dane  v.  Valentine,  5  Met.  14. 

«  Bankart  v.  Houghton,  27  Beav.  425;  28  L.  J.  Ch.  473. 


LIGHT.  383 

a  right  by  which  the  servient  owner  is  restricted  from  the  full 
and  ordinary  enjoyment  of  his  land  ;  it  is  a  right  by  which  the 
servient  owner  is  prohibited  building  on  his  own  soil  in  such 
a  manner  as  to  obstruct  the  windows  of  the  dominant  ten- 
ement, in  consequence  of  which  any  such  building  becomes 
wrongful,  and  the  obstruction  of  the  light  an  injury  for  which 
the  dominant  owner  may  sue.** 

Obstruction  of  light  is  an  injury  which  the  law  has  recog- 
nized, and  for  which  it  has  awarded  compensation,  in  Restraint 
the  shape  of  damages,  from  the  earliest  times,  but  in  "ion'by'ia-" 
later  years  the  tendency  arose  rather  to  appeal  to  the  junction. 
court  of  chancery  to  restrain  obstruction  of  light  by  injunc- 
tion than  to  sue  for  damages  at  law,  inasmuch  as  the  award  of 
damages  was,  in  many  cases,  an  inadequate  remedy,  or  inap- 
propriate to  the  circumstances  of  the  case.*  Now  that  the  Ju- 
dicature Act  has  amalgamated  the  courts  and  has  given  to  the 
High  Court  of  Justice  the  powers  both  of  the  common  law  and 
chancery  courts,  it  may  be  readily  imagined  that  the  prac- 
tice will  commonly  be  to  claim  both  damages  and  an  injunc- 
tion in  every  action  for  disturbance  of  easements.  By  ac- 
quiescence in  the  erection  of  a  building,  which  it  is  probable 
will  have  the  effect  of  interfering  with  light,  the  dominant 
Qwner  will  generally  lose  his  right  to  an  injunction,  after  the 
building  is  completed,  on  the  same  principle  that  acquiescence 
in  pollution  of  air  will  frequently  deprive  a  person  injured  of 
a  similar  remedy  for  that  pollution  ;  if  it  should  turn  out, 
however,  that  the  owner  of  a  right  to  light  was  induced  to 
acquiesce  in  the  erection  of  an  obstructing  building,  by  the 

"  The  distinctions  that  exist  between  the  easements  of  free  passage  for 
light  and  air  have  already  been  noticed,  as  well  as  the  impropriety  of 
coupling  them  in  actions  for  obstruction.     See  ante,  p.  369. 

*  One  of  the  earliest  cases  of  application  to  the  Court  of  Chancery  to 
restrain  obstruction  of  light  by  injunction  was  The  Attorney  General  v. 
Nichol  (16  Ves.  338),  in  which  Lord  Eldon,  C,  said  that  the  foundation 
of  the  jurisdiction  of  that  court  was  that  head  of  mischief  alluded  to  by 
Lord  Hardwicke,  that  sort  of  material  injury  to  the  comfort  of  the  exist- 
ence of  those  who  dwell  in  the  neighboring  house  requiring  the  applica- 
tion of  a  power  to  prevent,  as  well  as  remedy,  an  evil  for  which  damages, 
more  or  less,  would  be  given  in  an  action  at  law. 


384  DISTURBANCE   OF  EASEMENTS. 

false  representation  of  the  builder  that  his  lights  would  not 
be  obstructed  when  the  building  should  be  finished,  he  would, 
in  all  probability,  not  be  deprived  of  his  right  to  have  the  ob- 
struction abated,''  and  before  a  refusal  to  order  a  completed 
building  to  be  removed  the  court  will  take  into  consideration 
the  nature  of  the  obstructing  building  and  the  other  circum- 
stances of  the  case,  for,  as  it  was  put  by  the  lords  justices  in 
the  case  of  Baxter  v.  Bowen,*^  the  court  would  not  allow  a 
man  to  stand  by  while  such  a  building  as  the  Langham  Hotel 
was  being  built  up  and  then  come  and  have  it  pulled  down, 
but  it  was  very  different  in  the  case  then  under  consideration, 
where  the  obstructing  building  was  merely  an  open  shed  of  a 
slight  and  temporary  character  which  could  be  removed  very 
easily  and  at  very  little  cost. 

It  was  mentioned  in  a  former  part  of  this  work,  when  the 
Right  by  acquisition  of  rights  to  light  was  considered,  that  if 
granron  ^  persou  sells  a  house,  with  windows  overlooking  his 
sale:  ob-  land,  wliich  he  retains,  a  right  to  light  is  given  to 
tion.  the  purchaser  by  implied  grant,  and  that  the  vendor 

cannot  afterwards  build  in  such  a  manner  as  to  obstruct  those 
windows  ;  for  so  obstructing  the  light  would  be  an  act  in 
derogation  of  the  vendor's  grant,  which  the  law  will  not  per- 
mit ;  in  the  event  of  such  obstruction  the  purchaser  may  sue 
either  for  damages  or  an  injunction.*  In  a  case,  however,  in 
which  the  owner  of  a  house,  with  an  ancient  window,  had  let 
it  by  an  agreement  not  under  seal,  wherein  he  promised  to 
grant  a  lease,  and  had  afterwards  blocked  up  the  window,  the 
Court  of  Chancery  refused  to  compel  the  lessor  to  remove  the 
obstruction,  as  the  bill  did  not  ask  for  specific  performance  of 
the  agreement  to  grant  the  lease,  whereby  the  tenant  might 
acquire  a  legal  right  to  light,  and  the  light  could  not  be 
claimed  as  ancient  against  the  lessor.-^    The  right  to  light  by 

<=  Davies  v.  Marshall,  10  C.  B.  N.  S.  697;  31  L.  J.  C.  P.  61. 
-    **  44  L.  J.  Ch.  625  (not  elsewhere  reported). 

«  Coutts  V.  Gorham,  Moo.  &  Mai.  396;  Cox  v.  Matthews,  1  Vent.  239; 
Palmer  v.  Fletcher,  1  Lev.  122;  Sir  T.  Raym.  87;  Davies  v.  Marshall,  1 
Dr.  &  Sm.  557;  Miles  v.  Tobin,  17  L.  T.  432  (not  elsewhere  reported). 

/  Fox  V.  Purssell,  3  Sm.  &  G.  242. 


LIGHT.  385 

implied  grant,  on  sale  of  a  house  apart  from  the  adjoining 
land,  obviously  extends  only  to  windows  which  were  in  exist- 
ence at  the  time  of  the  sale,  and  which  are  in  the  house  sold ; 
no  action  will,  therefore,  lie  for  obstruction  of  windows  which 
have  been  opened  subsequently  to  the  sale,  nor  for  obstruction 
of  windows  in  buildings  other  than  those  included  in  the  pur- 
chase, neither  can  the  purchaser  sue  if  he  has  materially  al- 
tered the  position  of  the  windows  ;  that  is,  if  he  has  altered 
them  to  such  a  degree  that  they  cannot  be  regarded  as  the 
same  lights." 

In  Hall  V.  Evans,^  in  the  Queen's  Bench  of  Upper  Canada, 
where  a  statute  exists  similar  to  the  English  Prescription  Act, 
it  was  held  that  a  right  to  light  was  lost,  or  rather  was  not 
acquired,  if  during  the  twenty  years'  enjoyment  the  owner 
of  the  windows  had  raised  his  building  and  windows  so  high 
that  no  part  of  the  windows  in  their  new  situation  occupied 
any  part  of  the  space  they  did  before  ;  the  house  being  raised 
higher  than  the  whole  length  of  the  windows  ;  and  the  gen- 
eral reasoning  of  the  case  is  in  favor  of  the  American  rule  as 
to  prescriptive  lights,  except  when  statutes  exist  to  the  con- 
trary. 

In  the  recent  case  of  Barnes  v.  Loach,^  it  was  held  that  a 
right  of  light  to  windows  in  the  walls  of  certain  cottages  was 
not  lost  by  removing  the  walls  farther  back,  and  making  win- 
dows in  the  new  walls  of  the  same  size,  and  in  the  same  rel- 
ative positions  as  the  old  ones  ;  nor  by  erecting  a  new  wall 
outside  of  the  old  one,  with  another  window  in  it,  but  leaving 
the  old  wall  and  window  as  before  to  receive  light  through 
the  new  one. 

When  actions  or  suits  have  been  commenced  for  obstruction 
of  light,  various  reasons  have  at  times  been  assigned   justifica- 
by  way  of  justification  for  such  obstruction,  which   st^rucUng^' 
have  been  held  to  afford  no  justification  whatever.    I'sht. 

8-  Blanchard  v.  Bridges,  4  A.  &  E.  176  ;  5  L.  J.  N.  S..K.  B.  78. 

1  42  Upper  Can.  Q.  B.  Rep.  190  (1877),  a  valuable  case  on  this  sub- 
ject. 

2  4  Q.  B.  D.  494  (1879). 

25 


386  DISTURBANCE   OF   EASEMENTS. 

Thus,  from  the  case  of  Yates  v.  Jack,*  the  principle  is  to  be 
Sufficient  derived  that  the  circumstance  of  sufficient  light  be- 
preienr  ^"§  ^®^^  ^°^'  ^^^®  present  purpose  of  the  owner  of  a 
purposes,  house  whosc  light  is  obstructed,  or  that  many  per- 
sons carry  on  a  business  similar  to  that  conducted  in  the  house, 
with  a  smaller  amount  of  light  than  that  which  continues  to 
enter  the  obstructed  windows,  forms  no  justification  for  con- 
tinuing an  obstruction,  and  no  defence  to  an  action  or  suit  for 
the  injury  ;  for  the  right  conferred  or  recognized  by  the  Pre- 
scription Act  is  an  absolute  indefeasible  right  to  the  enjoy- 
ment of  the  light  accustomed  to  enter  the  windows,  without 
reference  to  the  purpose  for  which  it  has  been  used,  and  a 
right  created  by  express  or  implied  grant  is  a  right  to  the 
amount  of  light  which  was  accustomed  to  enter  the  windows 
Substitu-      at  the  time  the  grant  was  made.     It  has  also  been 

tion  of  new        n  -i  •       ,•£>       .  •  <•  ^     l         i_- 

stream  of  alleged  as  an  excuse  or  justmcation  tor  obstructing 
dtfferent*  ^'g^^^'  ^"^  ^^  ^  defence  in  legal  proceedings,  that 
direction,  more  light  has  been  given  in  consequence  of  the  al- 
teration of  the  obstructing  buildings  in  a  different  direction 
or  in  a  different  manner  from  that  by  which  it  was  formerly 
derived,  and  also  that  the  property  in  the  dominant  tenement 
has  been  improved  by  the  alterations  which  have  been  effected 
in  the  neighboring  houses,  and  that  the  owner  himself  has 
partially  obstructed  it ;  but  all  these  excuses  are  to  no  purpose, 
and  do  not  justify  the  obstruction  of  ancient  light,  for  the 
owner  of  a  right  to  light  has  a  right  to  have  the  light  unin- 
terrupted in  its  ordinary  mode  of  flowing  to  his  windows,  and 
undiverted  from  its  accustomed  course,  and  no  stranger  can 
justify  the  substitution  of  a  different  stream  of  light  without 
the  consent  of  the  dominant  owner.  Independently  of  this  the 
dominant  owner,  when  a  new  stream  of  light  is  caused  to 
flow  to  him,  has  no  legal  right  to  that  stream,  and  cannot  in- 
sist that  it  shall  not  be  obstructed  or  diverted,  and  if  the  giv- 
ing of  such  a  new  stream  justified  the  obstruction  of  ancient 
light,  the  dominant  owner  might  soon  be  deprived  of  light 

*  L.  R.  1  Ch.  App.  295;  35  L.  J.  Ch.  539.  See,  also,  Martin  v.  Hea- 
don,  L.  R.  2  Eq.  425 ;  35  L.  J.  Ch.  602,  and  Dent  v.  Auction  Mart  Co. 
L.  R.  2  Eq.  238  ;  35  L.  J.  Ch.  555, 


LIGHT.  387 

altogether,  for  he  could  not  resist  the  stoppage  of  the  new- 
supply/ 

It  ma}'-  also  be  noticed  that  the  position  of  an  obstructing 
building  is  not  a  material  consideration  in  determin-  Position  of 
ing  whether  an  action  will  lie  either  for  an  injunc-  °,^g  bu^^. 
tion  or  for  damages,  for  it  matters  not  whether  the  i^S- 
building  is  opposite,  at  right  angles,  or  in  a  position  oblique, 
to  the  obstructed  windows,  the  real  and  only  question  being 
whether  the  effect  is  such  an  obstruction  as  the  party  building 
has  no  right  to  cause/  The  position  of  an  obstructing  build- 
ing may,  however,  have  some  effect  on  the  evidence  necessary 
to  support  an  action,  and  this  se(5ms  to  be  the  only  effect  of 
such  a  building  being  so  directly  facing  the  window  that  has 
been  darkened.  In  the  case  of  The  City  of  London  Brewery 
Company  v.  Tennant,*  Lord  Selborne,  C,  said  that  he  quite 
agreed  with  Lord  Cranworth,  in  the  case  of  Clarke  v.  Clark,' 
that  a  greater  amount  of  evidence  is  needed  to  prove  a  mate- 
rial injury  to  light  by  lateral  or  oblique  obstruction  than  is 
necessary  in  a  case  of  direct  obstruction,  and  that  more  es- 
pecially when  the  buildings  to  the  side  are  not  erected  upon 
what  was  previously  an  open  space,  but  upon  a  space  already 
to  a  very  great  extent  obstructed  by  buildings. 

A  question  of  considerable  importance  relating  to  justifica- 
tion for  obstruction  of  light,  and  one  which  has  given   Eniarge- 
rise  to  much  argument,  it  even  obtaining  ultimate   "^"3,°^^ 
decision  in  the  House  of  Lords,  is  whether  the  fact   ligiits,  and 

opening  of 

that  the  owner  of  ancient  lights  has  enlarged  his   new  win- 
windows,  or  has  opened  new  windows,  will  justify 
the  servient  owner  in  obstructing  the  ancient  lights  if  it  is 
impossible  for  him,  owing  to  the  position  of  the  enlargement 
or  of  the  new  windows,  to  obstruct  them  alone  without  at  the 
same  time  obstructing  the  ancient  lights.     It  has  ultimately 

»  Senior  r.  Pawson,  L.  R.  3  Eq.  330;  Straight  v.  Burn,  L.  R.  5  Ch.  App. 
163  ;  39  L.  J.  Ch.  289  ;  Dyers'  Co.  v.  King,  L.  R.  9  Eq.  438  ;  39  L.  J. 
Ch.  339  ;  Baxter  v.  Bower,  44  L.  J.  Ch.  625  (not  elsewhere  reported). 

■>'  Attorney  General  v.  Nichol,  16  Ves.  at  p.  342. 

^-  L.  R.  9  Ch.  App.  at  p.  220;  43  L.  J.  Ch.  at  p.  459. 

'  L.  R.  1  Ch.  App.  16 ;  35  L.  J.  Ch.  151. 


388  DISTURBANCE   OF   EASEMENTS. 

been  decided  that  the  servient  owner  is  not,  in  such  case,  jus- 
tified in  obstructing  the  ancient  lights,  and  it  has  been  de- 
cided further  that  the  court  will  not  make  it  a  condition  for 
the  grant  of  an  injunction  to  restrain  obstruction  of  ancient 
lights,  that  new  windows  or  the  inci'ease  of  ancient  windows 
should  be  blocked  up  ;  "*  but  as  this  is  a  question  of  consider- 
able importance,  and  has  given  rise  to  much  debate  and  diver- 
sity of  opinion,  the  various  decisions  of  the  courts  on  the  sub- 
ject will  be  considered  in  succession. 

The  first  case  to  be  noticed  is  Renshaw  v.  Bean,"  which  was 
Renshaw  ^^^  action  for  obstructing  light,  and  the  facts  were 
r.  Bean.  ^^iQ^i  the  plaintiff's  windows  looked  into  a  court  on 
the  opposite  side  of  which  the  defendant's  house  was  situated. 
The  plaintiff's  windows,  until  they  were  altered,  were  entirely 
ancient  lights,  but  about  eighteen  years  before  the  action  the 
house  in  which  they  were  situated  had  been  rebuilt,  and  in 
the  rebuilding  some  of  the  windows  were  enlarged  and  some 
were  entirely  altered  in  position,  and  none  of  the  then  exist- 
ing windows  entirely  corresponded  in  size  and  situation  with 
those  in  the  ancient  house,  although  they  did  so  in  part.  The 
defendant  raised  his  house  and  obstructed  the  light,  in  conse- 
quence of  which  the  action  was  brought.  The  court  gave 
judgment  for  the  defendant.  Lord  Campbell,  C.  J.,  who  de- 
livered judgment,  said  that  the  court  did  not  proceed  upon 
the  ground  that  the  plaintiff,  by  the  alteration  of  his  win- 
dows, had  entirely  lost  the  right  which  he  had  before  enjoyed 
of  having  light  and  air  through  such  portions  of  the  existing 
windows  as  formed  portions  of  the  ancient  lights  ;  but  that 
the  plaintiff  had  acquired  nothing  more  in  addition  to  his  for- 
mer right,  and  if  by  the  alterations  which  he  had  made  he 
had  exceeded  the  limits  of  that  right,  and  had  put  himself 
into  such  a  position  that  the  excess  could  not  be  obstructed  by 
the  defendant  in  the  exercise  of  his  lawful  risfhts  on  his  own 
land  without  at  the  same  time  obstructing  the  former  right  of 
the  plaintiff,  he  had  only  himself  to  blame  for  the  existence 
of  such  a  state  of  things,  and  must  be  considered  to  have  lost 

"»  Aynsley  v.  Glover,  L.  R.  10  Ch.  App.  283;  44  L.  J.  Cli.  523. 
»  18  Q.  B.  112;  21  L.  J.  Q.  B.  219. 


LIGHT.  389 

the  former  right  which  he  had,  at  all  events  until  he  should, 
by  himself  doing  away  with  the  excess  and  restoring  his  win- 
dows to  their  former  state,  throw  upon  the  defendant  the  ne- 
cessity of  so  arranging  his  buildings  as  not  to  interfere  with 
the  admitted  right.  It  will  be  observed  that  in  this  judg- 
ment it  was  particularly  remarked  that  the  original  right  to 
light  was  not  destroyed  by  the  enlargement  of  the  windows, 
but  that  the  ground  of  judgment  was  merely  that  the  plain- 
tiff was  himself  to  blame  for  the  existing  state  of  things,  and 
therefore  that  the  defendant  was  justified  in  obstructing  the 
ancient  as  well  as  the  modern  lights  as  he  could  not  obstruct 
the  latter  only.  It  will  be  seen  presently  that  the  former 
part  of  this  judgment  was  in  accordance  with  the  subsequent 
judgment  of  the  House  of  Lords  on  this  subject,  but  that  the 
House  of  Lords  overruled  this  judgment  on  the  last  point. 

The  case  of  Hutchinson  v.  Copestake  "  was  very  similar  in 
its  facts  to  that  of  Renshaw  v.  Bean,  and  the  judg-   ,,     , . 

re  1        •     1  %    Hutchin-   J 

ment  was  in  effect  the  same,  but  the  judgment  of  son  v. 
the  court  (the  Exchequer  Chamber),  which  was  in  '^P'^^  * 
favor  of  the  defendant,  was  given  on  the  ground  that  the  an- 
cient lights  were  so  confused  by  alteration  with  the  new  por- 
tions that  they  could  not  be  considered  as  substantially  the 
same  lights.  There  is,  however,  one  portion  of  the  judgment 
which  should  be  specially  noticed.  It  will  be  observed  that 
the  court  treated  the  right  to  light  acquired  by  prescription 
as  arising  by  implied  grant  in  a  manner  similar  to  other  ease- 
ments acquired  by  prescription,  and  in  this  the  view  of  the 
court  differed  from  the  opinion  of  the  House  of  Lords,  sub- 
sequently given  in  another  case,  which  will  be  presently  no- 
ticed. The  court  said  they  had  been  pressed  with  the  argu- 
ment that  there  was  no  greater  amount  of  inconvenience  to 
the  servient  tenement  after  the  enlargement  of  the  windows 
than  before  they  were  altered,  and  a  case  had  been  cited 
where  the  master  of  the  rolls  was  supposed  to  have  held  that 
a  party  having  several  windows  in  a  house  could  put  out  an 
intermediate  new  window  between  two  old  ones,  where  no  ap- 
parent detriment  to  the  owner  of  the  servient  tenement  ap- 
«  9  C.  B.  N.  S.  863;  31  L.  J.  C.  P.  19. 


390  DISTURBANCE   OF   EASEMENTS. 

peared  to  arise  therefrom.  They  wholly  dissented  from  that 
doctrine,  and  thought  that  the  right  to  restrict  the  owner  of 
the  adjoining  land  from  building  on  his  own  land  gained  by 
user  or  grant  must  be  confined  to  the  subject-matter  of  such 
user  or  grant,  and  that  the  restriction  on  the  owner  of  the 
servient  tenement  must  be  substantially  the  same.  The  court 
thought  the  owner  of  the  old  lights  could  not  say  that  the 
new  window  he  then  put  out  would  occasion  the  servient 
owner  no  harm,  as  he  could  not  build  so  as  to  affect  any  of 
his  lights  before,  and  the  new*  one  would  not  abridge  his 
power  of  building.  The  new  light  is  not  one  of  the  windows 
to  which  the  original  assent  was  given,  and  it  might  be  that 
the  owner  of  the  servient  tenement  would  not  have  chosen  to 
acquiesce  if  the  windows  had  been  in  the  situation  of  the  new 
windows. 

Several  cases  subsequently  arose  in  which  similar  decisions 
were  given,  and  chief  among  these  were  Binckes  v.  Pash,''  and 
Jones  V.  Tapling.5  Of  Binckes  v.  Pash  nothing  further  need 
be  said,  but  as  Jones  v.  Tapling  was  eventually  taken  to  the 
House  of  Lords,'"  and  is  the  case  in  which  the  principles  of  law 
Tapling  v.  on  this  important  point  were  ultimately  determined, 
"°^®'  the   facts    may  be   shortly    explained.      Jones,   the 

plaintiff  in  the  court  below,  and  respondent  in  the  House  of 
Lords,  was  a  dealer  in  silk,  carrying  on  business  in  certain 
premises  in  Wood  Street,  Cheapside,  which  abutted  in  the 
rear  on  property  in  Gresham  Street  in  the  occupation  of  the 
defendant,  Tapling,  who  became  appellant  in  the  House  of 
Lords.  Li  the  year  1852  Jones  pulled  down  his  premises  in 
Wood  Street  and  erected  new  warehouses,  and  in  so  doing 
altered  the  position  and  enlarged  the  dimensions  of  the  win- 
dows previously  existing,  increased  the  height  of  the  building, 
and  set  back  the  rear  or  back  line  of  the  warehouses.  The 
defendant,  Tapling,  in  the  year  1856,  pulled  down  his  prem- 

P  11  C.  B.  N.  S.  324  ;  31  L.  J.  C.  P.  121. 

«  11  C.  B.  N.  S.  283;  31  L.  J.  C.  P.  110.  Affirmed  in  Exchequer 
Chamber,  the  judges  being  much  divided  in  opinion,  12  C.  B.  N.  S.  825; 
31  L.  J.  C.  P.  342. 

»•  11  H.  L.  C.  290;  34  L.  J.  C.  P.  342. 


LIGHT.  391 

ises  in  Gresham  Street,  and  also  erected  new  warehouses. 
Before  the  rebuilduig  of  the  defendant's  premises,  the  plain- 
tiff, Jones,  made  considerable  alteration  in  the  size  and  posi- 
tion of  his  ancient  hghts,  and  not  only  increased  them,  but 
opened  new  windows,  and  the  new  windows  were  so  situated 
that  it  was  impossible  for  the  defendant  to  obstruct  or  block 
them  up  without  also  obstructing  or  blocking  to  an  equal  or 
greater  extent  some  of  the  ancient  but  altered  windows.  The 
defendant  in  building  and  obstructing  the  new  windows, 
therefore,  also  obstructed  the  ancient  altered  lights.  The 
plaintiff,  after  the  defendant  had  completed  the  obstructing 
wall  of  his  new  premises,  by  the  advice  of  counsel,  caused  his 
altered  windows  to  be  restored  to  their  original  state,  and  the 
new  windows  to  be  blocked  up,  and  he  then  wrote  to  the  de- 
fendant requiring  him  to  pull  down  his  wall ;  this,  however, 
was  refused,  and  the  action  was  commenced.  The  judges  dif- 
fered in  opinion  as  to  the  plaintiff's  right  of  action,  both  in 
the  Court  of  Common  Pleas  and  also  in  the  Exchequer  Cham- 
ber ;  but  these  judgments  are  not  material  now,  as  the  whole 
theory  of  the  right  to  light  acquired  under  the  Prescription 
Act  was  explained  in  the  House  of  Lords  to  be  different  from 
what  had  been  assumed  in  all  previous  decisions,  and  in  fact 
the  principles  of  law  upon  which  all  previous  cases  had  been 
decided  were  overruled.  It  is  necessary,  therefore,  to  con- 
sider the  judgments  of  the  lords  alone,  and  particularly  that 
of  Lord  Westbury,  C,  who  explained  the  true  nature  of  the 
easement  of  light,  and  the  principles  of  lavt^  by  which  that 
right  and  the  right  of  action  is  governed.  It  will  be  re- 
marked, however,  that  the  whole  of  this  judgment  relates  to 
rights  to  light  acquired  by  prescription  ;  and  if,  therefore, 
such  a  right  is  acquired  by  grant,  actual  or  implied,  it  is  pre- 
sumed the  principles  of  law  expounded  in  the  judgment  would 
not  apply  to  the  case.  His  lordship,  after  citing  the  third 
section  of  the  Prescription  Act,  which  relates  exclusively  to 
the  acquisition  of  rights  to  light,  remarked  that  upon  that  sec- 
tion it  was  material  to  observe,  with  reference  to  the  appeal 
under  consideration,  that  the  right  to  what  is  called  an  "  an- 
cient light  "  now  depends  upon  positive  enactment ;  that  it  is 


392  DISTURBANCE   OF   EASEMENTS. 

m&tter  juris  positivi  and  does  not  require,  and  therefore  ought 
not  to  be  vested  on,  any  presumption  of  grant  or  fiction  of  a 
license  having  been  obtained  from  the  adjoining  proprietor, 
and  he  added  that  that  observation  was  material,  because  he 
thought  it  would  be  found  that  error  in  some  decided  cases 
had  arisen  from  the  fact  of  the  courts  treating  the  right  as 
originating  in  a  presumed  grant  or  license.  It  must  also  be 
observed,  he  continued,  that  after  an  enjoyment  of  an  access 
of  light  for  twenty  years  without  interruption,  the  right  is  de- 
clared by  the  statute  to  be  absolute  and  indefeasible,  and  th^t 
it  would  therefore  seem  that  it  cannot  be  lost  or  defeated  by  a 
subsequent  temporary  intermission  of  enjoyment  not  amount- 
ing to  abandonment ;  and  that  this  absolute  and  indefeasible 
right,  which  is  the  creation  of  the  statute,  is  not  subjected  to 
any  condition  or  qualification,  nor  is  it  made  liable  to  be  af- 
fected or  prejudiced  by  any  attempt  to  extend  the  access  or 
use  of  light  beyond  that  which,  having  been  enjoyed  uninter- 
ruptedly during  the  required  period,  is  declared  to  be  not  lia- 
ble to  be  defeated.  Before  dealing  with  the  appeal,  his  lord- 
ship thought  it  might  be  useful  to  point  out  some  expressions 
which  are  found  in  decided  cases,  and  which  seem  to  have  a 
tendency  to  mislead.  One  of  these  expressions  is  the  phrase 
"  right  to  obstruct."  If  my  adjoining  neighbor,  he  continued, 
builds  upon  his  land  and  opens  numerous  windows  which  look 
over  my  gardens  or  mj'^  pleasure  grounds,  I  do  not  acquire 
from  this  act  of  my  neighbor  any  new  or  other  right  than  I 
before  possessed.  I  have  simply  the  same  right  that  I  before 
possessed — I  have  simply  the  same  right  of  building  or  rais- 
ing any  erection  I  please  on  my  own  land,  unless  that  right 
has  been  by  some  antecedent  matter  either  lost  or  impaired, 
and  I  gain  no  new  or  enlarged  right  by  the  act  of  my  neigh- 
bor. Again  there  is  another  form  of  words  which  is  often 
found  in  cases  on  this  subject,  namely,  the  phrase  "invasion 
of  privacy  by  opening  windows."  That  is  not  treated  by  the 
law  as  a  wrong  for  which  any  remedy  is  given.  If  A.  be  the 
owner  of  beautiful  gardens  and  pleasure  grounds,  and  B.  is 
the  owner  of  an  adjoining  piece  of  land,  B.  may  build  upon  it 
a  manufactory  with  a  hundred  windows  overlooking  the  pleas- 


LIGHT.  393 

ure  grounds,  and  A.  has  neither  more  nor  less  than  the  right 
■which  he  previously  had  of  erecting  on  his  land  a  building  of 
such  a  height  and  extent  as  will  shut  out  the  windows  of  the 
newly  erected  manufactor}^  Suppose,  then,  continued  the 
lord  chancellor,  that  the  owner  of  a  dwelling-house  with  a 
window,  to  which  an  absolute  and  indefeasible  right  to  a  cer- 
tain access  of  light  belonged,  opens  two  other  windows,  one 
on  each  side  of  the  old  window,  does  the  indefeasible  right 
become  thereby  defeasible  ?  By  opening  the  new  windows  he 
does  no  injury  or  wrong  in  the  eye  of  the  law  to  his  neighbor, 
who  is  at  liberty  to  build  up  against  them,  so  far  as  he  pos- 
sesses the  right  of  building  on  his  land  ;  but  it  must  be  re- 
membered that  he  possesses  no  right  of  building  so  as  to  ob- 
struct the  ancient  window ;  for  to  that  extent  his  right  of 
building  is  gone  by  the  indefeasible  right  which  the  statute 
has  conferred. 

After  the  enunciation  of  these  important  principles  of  law, 
Lord  Westbury  stated  that  he  could  not  accept  the  reasoning 
on  which  the  decisions  in  Renshaw  v.  Bean  and  Hutchinson 
V.  Copestake  were  founded,  for  upon  examining  the  judgments 
in  those  cases  it  would  be  seen  that  the  opening  of  new  win- 
dows was  treated  as  a  wrongful  act  done  by  the  owner  of  the 
ancient  lights,  which  occasioned  the  loss  of  the  old  right  he 
possessed  ;  and  •  the  courts  asked  whether  he  could  complain 
of  the  natural  consequence  of  his  own  act.  His  lordship 
thought  two  erroneous  assumptions  underlaid  this  reasoning  : 
first,  that  the  act  of  opening  the  new  windows  was  a  wrong- 
ful one  ;  and  secondly,  that  such  wrongful  act  was  sufficient 
in  law  to  deprive  the  party  of  his  right  under  the  statute. 
But  he  had  already  observed  that  the  opening  of  new  win- 
dows is  in  law  an  innocent  act,  and  no  innocent  act  can  de- 
stroy the  existing  right  of  one  party,  or  give  any  enlarged 
right  to  the  other,  namely,  the  adjoining  proprietor.  The 
other  lords  concurred,  and  expressed  opinions  similar  to  that 
of  Lord  Westbury.* 

'  Since  the  decision  in  the  case  of  Tapling  v.  Jones,  in  the  House  of 
Lords,  several  cases  have  occurred  in  the  Court  of  Chancery  in  which 
the  judges  have  doubted  the  soundness  of  the  reasoning  upon  which  that 


394  DISTURBANCE   OF  EASEMENTS. 

It  was  mentioned  in  a  former  place  that  in  those  cases  in 

which  disturbance  of  an  easement  affects  or  incon- 
Action  bv  i  •  <•       i  i 

a  rever- "      veniences  the  occupier  of  a  liouse  alone,  a  reversioner 

who  is  in  no  way  injured  is  incapable  of  suing  either 


sioner. 


judgment  was  based,  or  have  restricted  the  application  of  the  principles 
therein  expounded.  In  Lanfranchi  v.  Mackenzie  (L.  R.  4  Eq.  at  p.  426  ; 
36  L.  J.  Ch.  at  p.  522),  Vice  Chancellor  Malins  said  he  did  not  under- 
stand the  Prescription  Act  to  have  made  any  difference  in  the  principle 
on  -which  rights  to  light  are  acquired  by  prescription,  and  that  he  only 
read  the  statute  as  meaning  that  there  was  no  absolute  period  for  acquisi- 
tion of  a  right  to  light  before  the  statute,  but  that  now  the  period  is  fixed 
at  twenty  years,  and  that  all  the  cases  since  the  act  was  passed  had  been 
decided  on  the  ancient  principle  of  law.  In  Heath  v.  Bucknall  (L.  R.  8 
Eq.  1;  38  L.  J.  Ch.  372),  Lord  Romilly,  M.  R.,  said:  "I  do  not  under- 
stand that  Tapling  v.  Jones  overrules  this  doctrine,  laid  down  in  the  Cur- 
riers' Co.  V.  Corbett,  which  appears  to  me  to  be  founded  on  immutable 
and  incontrovertible  principles  of  equity.  Tapling  v.  Jones  unquestion- 
ably decides  that  no  alteration  of  an  ancient  light  would  justify  the  owner 
of  the  servient  tenement  in  obstructing  what  remains  of  the  ancient  light, 
so  as  to  exempt  him  from  his  liability  to  pay  damages  for  such  obstruction. 
■But  whether  this  obstruction  is  a  matter  to  be  compensated  by  damages 
only,  or  whether  it  is  one  which  can  be  restrained  by  injunction,  is,  I  con- 
ceive, a  totally  different  question.  It  may,  no  doubt,  be  laid  down  as  a 
general  axiom,  that  where  a  man  possesses  a  right  to  light  and  air  over 
the  property  of  a  neighbor,  the  obstruction  of  which  would  be  punishable 
at  law  in  the  shape  of  damages,  a  court  of  equity  will,  by  injunction,  pre- 
vent that  obstruction ;  but  where  the  owner  of  the  ancient  light  so  deals 
with  it,  as  essentially  to  alter  its  character,  to  convert  it  into  a  different 
easement  over  his  neighbor's  land,  and  one  which  prevents  him  from  en- 
joying his  pi'operty  as  he  might  have  done  at  any  time  before  the  ancient 
lights  were  so  altered,  then  I  am  of  opinion  that  the  owner  of  the  servient 
tenement  is  not  debarred  from  the  enjoyment  of  his  land  as  heretofore. 
If,  however,  in  obtaining  such  enjoyment,  he  unavoidably  interferes  with 
the  ancient  light  of  the  owner  of  the  dominant  tenement,  then  the  only 
compensation  which  that  owner  can  obtain  is  in  the  shape  of  damages. 
He  is  still  entitled  to  compensation  for  the  obstruction  of  that  which  he 
formerly  enjoyed,  but,  by  reason  of  his  own  act,  he  has  deprived  himself 
of  the  right  to  call  upon  a  court  of  equity  to  assist  him."  The  doctrine 
thus  broadly  laid  down  by  Lord  Romilly,  M.  R.,  was  not  approved  by 
Lord  Justice  Giffard  as  being  applicable  to  all  cases  in  equity;  for  com- 
menting upon  that  case  in  Straight  lu  Burn  (L.  R.  5  Ch.  App.  at  p.  166; 
39  L.  J,  Ch.  at  p.  290),  he  said  :  "  That  leaves  only  the  other  part  of  the 
case  which  has  been  argued,  namely,  the  authority  of  Heath  v.  Bucknall. 
With  respect  to  that  case  I  cannot  take  it  as  having  been  decided  other- 


LIGHT.  395 

at  law  or  in  equity.  It  is  on  tliis  ground  that  a  reversioner 
is,  in  most  cases,  incapable  of  suing  for  obstruction  of  ligbt, 
for  the  injury  thereby  caused  is  generally  an  injury  to  the 
occupier  of  a  house  alone.  In  the  case  of  Wilson  v.  Town- 
end,'  Kindersley,  V.  C,  said  that  there  is  no  doubt  that  the 
ground  of  the  jurisdiction  of  the  Court  of  Chancery  in  cases 
of  obstruction  of  light  is  the  interference  with  the  personal 
convenience  and  comfort  of  the  persons  occupying  the  house 
to  which  a  right  to  light  is  appurtenant ;  he  thought,  how- 
ever, that  exceptions  to  this  rule  might  arise,  and  that  the 
case  then  before  the  court  was  one  of  those  exceptions  on  the 
ground  that  the  value  of  the  dominant  tenement  would  be 
materially  diminished  by  the  continuance  of  the  obstruction, 
and  consequently  that  the  court  was  justified  in  interfering  at 
the  suit  of  a  reversioner.  So,  also,  in  the  case  of  The  Metro- 
politan Association  v.  Fetch,"  it  was  held  that  the  erection  of 
a  hoarding  by  which  light  was  obstructed  might  be  sufficient 
to  give  a  right  of  action  to  a  reversioner,  for  that  the  injury 

wise  than  upon  its  particular  circumstances;  those  particular  circumstances, 
as  I  gather  them,  being,  that  a  very  small  and  almost  inappreciable  pro- 
portion of  the  ancient  window  was  preserved,  and  the  rest  was  new ;  so 
that  there  would  have  been  no  material  damages  at  law.  But  if  this  case 
is  supposed  to  lay  down  the  proposition  that  a  plaintiff",  who  according  to 
Tapling  v.  Jones,  has  clear  legal  rights,  cannot  come  to  this  court  and 
get  protection  for  those  rights,  I  entirely  demur  to  such  a  conclusion.  If, 
for  instance,  there  is  a  house  with  three  ancient  windows,  and  it  is  desir- 
able to  add  at  no  great  distance  from  those  three  ancient  windows  two 
other  windows,  is  it  to  be  said  that  because  those  two  other  windows  are 
to  be  placed  in  that  position,  the  plaintiff  is  not  to  come  into  court  to  pre- 
serve what  has  been  decided  in  Tapling  v.  Jones  to  be  his  clear  legal  right? 
Such  a  conclusion  would  not  be  either  according  to  principle,  or  to  the 
course  of  this  court.  I  take  the  course  of  this  court  to  be,  that  when  there 
is  a  material  injury  to  that  which  is  a  clear  legal  right,  and  it  appears  that 
damages  from  the  nature  of  the  case  would  not  be  a  complete  compensa- 
tion, this  court  will  interfere  by  injunction."  So,  again,  in  Aynsley  v. 
Glover,  L.  R.  10  Ch.  App.  283  ;  44  L.  J.  Ch.  523,  ^it  was  held  that  the 
Prescription  Act  did  not  take  away  any  of  the  modes  of  claiming  ease- 
ments, including  rights  to  light,  which  existed  before  that  act. 

«  1  Dr.  &  Sm.  324;  30  L.  J.  Ch.  25. 

«  5  C.  B.  N.  S.  504;  27  L.  J.  C.  P.  330. 


396  DISTURBANCE   OF  EASEMENTS. 

might  be  of  a  permanent  character,  and  therefore  injurious  to 
the  reversionary  estate,  but  Avhether  the  hoarding  was  of  such 
a  permanent  character  as  really  to  produce  injury  to  the  re- 
versioner, and  enable  him  to  maintain  his  action,  was  a  ques- 
tion of  fact  which  must  be  determined  by  a  jury.  The  argu- 
ment by  which  the  vice  chancellor,  in  Wilson  v.  Townend, 
arrived  at  his  decision,  that  he  ought  to  grant  an  injunction 
at  the  suit  of  the  reversioner,  and  that  the  objection  of  the  de- 
fendant to  the  jurisdiction  of  the  court  ought  not  to  prevail, 
was  to  the  effect,  that  supposing  it  happened,  as  it  does  hap- 
pen in  many  cases,  that  the  house  which  had  the  ancient 
lights  stood  upon  the  very  verge  of  the  owner's  ground,  there 
would  be  nothing,  if  the  defendant's  objection  were  to  pre- 
vail, to  prevent  him,  if  his  ground  came  up  to  the  wall  of  the 
house,  from  building  a  dead  wall  within  six  inches  of  the 
whole  of  the  windows,  and  so  completely  blocking  up  the 
whole  of  the  light ;  and  he  felt  very  great  difficulty  in  coming 
to  the  conclusion,  that  in  such  a  case  the  Court  of  Chancery 
would  say,  "  You  must  go  to  law  and  get  your  damages,  and 
this  court  will  not  interfere."  It  would  seem,  however,  that 
there  is  no  real  difficulty  on  the  point,  and  that  the  rule  must 
be  the  same  in  cases  of  obstruction  of  light  as  in  cases  of  dis- 
turbance of  other  easements  ;  if  an  obstruction  is  merely  tem- 
porary, the  occupier  of  the  house  is  alone  injured,  and  he 
alone  can  sue  for  damages,  for  actual  injury  is  necessary  to 
support  an  action  on  the  case  ;  so  also  he  alone  can  sue  for  an 
injunction,  for  the  foundation  for  that  remedy  is  the  interfer- 
ence with  his  personal  comfort ;  if,  on  the  contrary,  the  ob- 
structing object  is  permanent,  the  reversionary  estate  is  in- 
jured, for  the  right  to  light  may  be  arfnulled  unless  the 
obstruction  is  destroyed ;  the  right  of  the  reversioner  is  there- 
fore injured,  and  he  can  sue  either  for  damages  or  for  an  in- 
junction, for  he,  as  well  as  the  occupier,  sustains  damage  from 
the  obstruction. 

If  a  person  with  a  limited  interest  in  a  house  to  which  a 
tion^for  i  ^^^^  ^o  light  is  appurtcuaut  applies  to  the  court  for 
junction  by   an  injunction  to  restrain  the  obstruction  of  his  light, 


LIGHT.  397 

it  seems  that  the  court  will  restrain  the  obstruction   person  with 

limited  in- 

merely  during  the  continuance  of  his  interest,  and    terest. 
not  perpetually." 

If  a  building  by  which  light  is  wrongfully  obstructed  is  in 
the  occupation  of  a  tenant,  and  not  of  the  owner  of   Right  of 
the  soil,  it  would  seem  that   an  action   for   the  ob-   against  a 
struction  may  be  maintained  against  the  tenant  if  he   tenant  for 

■^    _      _  '^  _  obstructing 

erected  the  building,  for  he  was  guilty  of  a  wrong-  ligiu. 
ful  act  when  building  in  such  a  manner  as  to  obstruct  the 
light ;  but  the  case  would  appear  to  be  different  if  the  build- 
ing was  erected  before  the  tenancy  commenced,  for  then  the 
tenant  cannot  be  said  to  have  committed  a  wrongful  act,  and 
it  would  be  an  act  of  waste  if  he  were  to  remove  the  build- 
ing. So,  if  an  action  has  once  been  maintained  against  the 
tenant  for  erecting  a  building  whereby  he  has  obstructed 
light,  no  second  action  can  be  brought  against  him  success- 
fully for  continuing  the  obstruction,  for  he  cannot  remove  the 
building."" 

In  order  that  a  person  whose  light  is  obstructed  may  maintain 
an  action  it  is  generally  essential  that  he  should  have    „  ,  , 

°        .       ."^ ,  ,  Substantial 

sustained  substantial  injury  from  the  loss  of  light,  for  injiny  req- 
the  court  will  not  interfere  in  every  case  of  trifling  support  an 
inconvenience  or  injury.  This  is  a  rule  which  has  ^'^"°"- 
been  recognized  frequently,  and  from  very  earl}'  times,  both 
in  the  courts  of  common  law  and  chancery — for  instance, 
in  Dent  v.  The  Auction  Mart  Company,^  in  which  several  of 
the  authorities  were  mentioned.  In  that  case  Vice  Chancel- 
lor Wood  said :  "  In  these  cases,  which  of  late  have  been  ex- 
tremely frequent,  the  old  doctrine,  which  was  established  by 

"  Simper  v.  Foley,  2  John.  &  H.  555. 

*"  Arnold  v.  Jefferson,  Holt,  498.  See,  however,  Rosewell  v.  Prior,  2 
Salk.  460. 

==L.  R.  2  Eq.  238;  35  L.  J.  Ch.  555;  Attorney  General  v.  Nichol,  16 
Ves.  338;  Jackson  v.  Duke  of  Newcastle,  33  L.  J.  Ch.  698;  Parker  v. 
Smith,  5  C.  &  P.  438;  Wells  v.  Ody,  7  C.  &  P.  410;  Pringle  v.  Weniham, 
7  C.  &  P.  377;  Back  v.  Stacey,  2  C.  &  P.  465;  Arcedeckne  v.  Kelk,  2 
Gif.  683;  Robson  v.  Whittingham,  L.  R.  1  Ch.  App.  442  ;  35  L.  J.  Ch. 
223;  Beadel  v.  Perry,  L.  R.  3  Eq.  465;  Morris  v.  Lessees  of  Lord  Berke- 
ley, 2  Ves.  452  ;  3  Ves.  404. 


898  DISTURBANCE   OF  EASEMENTS. 

Lord  Eldon  in  The  Attorney  General  v.  Nichol,  seems  in  sub- 
stance never  to  have  been  departed  from The  doctrine 

estabHshed  in  The  Attorney  General  v.  Nichol,  and  recog- 
nized by  Lord  Westbury  in  the  more  recent  cases  of  Jackson 
V.  Duke  of  Newcastle,  and  other  cases,  was  this  :  '  There  are 
many  obvious  cases  of  new  buildings  darkening  those  opposite 
to  them,  but  not  in  such  a  degree  that  an  injunction  could  be 
maintained,  or  an  action  upon  the  case,  which,  however,  might 
be  maintained  in  many  cases  which  would  not  support  an  in- 
junction.' In  that  one  sentence  is  contained  the  whole  of  the 
doctrine  which  of  late  has  been  recognized  as  governing  this 
court  in  its  decisions  ;  though  it  is  not  always  easy  to  apply 
that  doctrine  when  it  has  been  enunciated.  First  of  all,  it  is 
necessary  to  ascertain  what  it  is  that  will  at  law  support  a 
claim  for  damages  in  respect  of  an  injury  done  to  a  building 
by  the  obstruction  of  light  and  air  ;  and  the  authority  to 
which  I  would  refer  in  preference  to  any  other  upon  this  sub- 
ject is  the  summing  up  of  Chief  Justice  Best  in  the  case  of 
Back  V.  Stacey,  because  that  summing  up  has  been  approved 
of  by  the  lords  justices  in  a  recent  case  before  their  lordships. 
The  chief  justice  told  the  jury,  '  In  order  to  give  a  right  of 
action  and  sustain  the  issue  there  must  be  a  substantial  pri- 
vation of  light  sufficient  to  render  the  occupation  of  the  house 
uncomfortable,  and  to  prevent  the  plaintiff  from  carrying  on 
his  accustomed  business  (that  of  a  grocer)  on  the  premises  as 
beneficially  as  he  had  formerly  done.'  With  the  exception  of 
reading  or  for  and  I  apprehend  that  the  above  statement  cor- 
rectly lays  down  the  doctrine  in  the  manner  in  which  it  would 
now  be  supported  in  an  action  at  law."  There  are  cases, 
however,  in  which  the  courts  will  interfere  when  the  obstruc- 
tion of  light  is  very  slight,  and  the  injury  sustained  is  trifling, 
but  these  are  very  rare  and  depend  upon  exceptional  cir- 
cumstances.'-' It  was  remarked  by  Vice  Chancellor  Wood,  in 
the  passage  above  cited  from  his  judgment  in  Dent  v.  The 
Auction  Mart  Company,  that  it  is  not  always  easy  to  apply 
the  doctrine  there  referred  to  when  it  has  been  enunciated. 
The  truth  seems  to  be  that  in  each  case  the  decision  must  de- 
y  Herz  V.  Union  Bank  of  London,  2  Gif.  686. 


LIGHT.  399 

pend  upon  the  circumstances,  and  that  it  is  impossible  to  lay 
down  any  infallible  rule  by  which  it  may  be  determined 
whether  the  injury  sustained  is  sufficient  to  induce  a  court  to 
interfere  or  a  jury  to  award  damages. 

It  is  here  necessary  to  notice  the  effect  of  a  covenant  for 
quiet  enjoyment.     It  has  been  shown  ^  that  no  grant    Covenant 
of  a  right  to  light  is  to  be  implied  from  the  mere    en'jovment. 
covenant  for  quiet   enjoyment    usually   inserted    in    ^™*'^  °^.  , 

^  .      .  .  .  substantial 

deeds  of  conveyance  of  buildings  with  windows,  but  injury, 
it  was  held  by  the  master  of  the  rolls  that  the  effect  of  a  cov- 
enant for  quiet  enjoyment  following  a  grant  of  light  among 
the  general  words  of  a  deed  of  conveyance  is  to  render  the 
gi'antee  entitled  to.  an  injunction  to  restrain  interference  with 
his  light,  however  slight  that  interference  may  be,  and  that 
substantial  injury  to  his  right  is  not  a  material  consideration 
in  determining  his  right  to  an  injunction  in  such  a  case,  but 
this  decision  was  overruled  by  the  lords  justices  on  appeal. 
The  lord  justices  first  considered  whether  any  greater  right 
than  the  ordinary  easement  was  passed  by  the  terms  of  the 
deed  under  their  notice.  That  deed  first  conveyed  a  piece  of 
ground  with  the  warehouses,  tenements,  and  appurtenances, 
and  then  contained  the  general  words  including  "  all  lights, 
easements,  advantages,  and  appurtenances  thereto  belonging, 
or  in  anywise  appertaining,"  and  the  court  thought  that  no 
greater  right  passed  to  the  grantee  by  those  words  than  the 
ordinary  right  to  light  which  is  commonly  acquired  by  pre- 
scription. Mellish,  L.  J.,  then  said  that  the  next  question 
was.  Did  the  covenant  for  quiet  enjoyment  make  any  differ- 
ence ?  He  said  he  had  no  hesitation  in  saying  that  nothing 
could  be  clearer  than  that  in  a  court  of  law  the  covenant  for 
quiet  enjoyment  in  its  plain,  ordinary  terms  did  not  increase 
or  enlarge  the  rights  which  were  granted  by  the  previous  part 
of  the  conveyance,  though  it  would  of  course  be  possible  to 
insert  in  any  covenant  words  which  would  increase  the  rights 
of  the  covenantee  to  damages  if  his  rights  were  violated,  or 
would  entitle  him  to  an  injunction  to  enforce  his  right.  It 
had  been  argued  that  the  covenant  for  quiet  enjoyment  was 
"  Ante,  p.  179. 


400  DISTURBANCE   OF   EASEMENTS. 

broken  by  the  obstruction  of  the  light  as  it  was  accustomed 
to  enter  the  windows  at  the  time  of  tlie  grant,  however  slight 
tlie  obstruction  might  be,  and  the  covenant  being  broken  that 
the  grantee  was  entitled  to  an  injunction  to  restrain  such 
violation,  although  he  might  not  be  able  to  prove  sufficient 
injui'y  to  entitle  him  to  damages  in  a  court  of  law,  but  the 
Court  of  Appeal  held  that  that  was  not  so,  and  that  there 
was  no  difference  in  the  amount  of  damage  which  would  en- 
title a  person  to  maintain  an  action  at  law,  and  that  which 
would  entitle  him  to  file  a  bill  in  equity  notwithstanding  the 
covenant  for  quiet  enjoyment.  The  conclusion,  therefore,  to 
be  derived  from  this  case  as  to  the  effect  on  the  ordinary  ease- 
ments granted  by  a  deed  of  conveyance,  of  the  common  cov- 
enant for  quiet  enjoyment  is,  that  it  has  no  effect  whatever 
except  perhaps  to  give  a  remedy  by  action  on  the  covenant  in 
addition  to  or  in  lieu  of  the  ordinaiy  remedy  by  action  on  the 
case  (if  the  expression  may  still  be  used)  for  interference 
with  the  right,  but  in  any  case  substantial  injury  must  be 
proved." 

The  difficulty  of  determining  whether  a  building  in  course 
Light  pre-  of  erection  would,  when  completed,  be  of  such  a 
faiiiiifrat  character  as  to  cause  a  substantial  diminution  of 
foirv'-rtve"^  light  to  an  ancient  window  opposite  to  it,  and 
degrees :       whether  a  case  was  such  as  to  warrant  a  grant   of 

substantial  ...  .  . 

injury.  an  injunction,  gave  rise  to  an  attempt  to  establish 
a  rule  or  guiding  principle  that  if  the  obstructing  wall  would 
not  when  finished  be  of  such  a  height  as  to  prevent  the  light 
falling  on  to  the  window  at  an  angle  of  forty-five  degrees, 
there  would  not  be  sufficient  ground  to  infer  that  the  light 
would  be  materially  obstructed,  and  that  the  case  would  not 
be  one  in  which  the  building  should  under  ordinary  circum- 
stances be  restrained.  This  principle  was  set  on  foot  by  the 
late  Vice  Chancellor,  Sir  John  Stuart,  who  said  that  it  seemed 
to  him  that  where,  opposite  to  ancient  lights,  a  wall  is  built 
not  higher  than  the  distance  between  the  wall  and  the  ancient 
lights,  there  cannot,  under  ordinary  circumstances,  be  such  a 
material  obscuration  of  the  ancient  lights  as  to  make  it  nec- 
«  Leech  i'.  Schweder,  L.  R.  9  Ch.  App.  463;  43  L.  J.  Ch.  477. 


LIGHT.  401 

essary  for  the  Court  of  Chancery  to  interfere  by  injunction. 
He  added  that  the  Metropolitan  Building  Act  is  framed  on 
the  principle  that  the  height  of  a  building  on  the  opposite 
side  of  a  street  should  not  exceed  the  breadth  of  the  street, 
that  is,  if  the  street  be  forty  feet  wide,  the  height  of  the 
building  on  the  opposite  side  must  not  exceed  forty  feet.  He 
also  said  that  he  had  had  the  means  of  ascertaining  from  one 
of  the  most  eminent  judges  of  the  common  law  courts  that, 
as  a  general  proposition,  the  courts  of  law  are  now  disposed 
to  take  this  view.*  This  proposition  has  given  rise  to  a  con 
siderable  amount  of  discussion,  and  various  cases  have  been 
argued  in  which  it  has  been  urged  as  a  hard  and  fast  rule  of 
law  ;  it  is  thought,  however,  unnecessary  to  wade  through  all 
the  cases  in  which  the  subject  has  been  considered,  but  that  it 
is  sufficient  to  refer  to  one  or  two  of  the  most  recent  as  they 
will  show  in  what  light  the  principle  has  come  to  be  regarded. 
In  the -case  of  The  City  of  London  Brewery  Company  v. 
Tennant,*^  Lord  Selborne,  C,  said  that  there  is  no  positive 
rule  of  law  upon  the  subject,  and  that  the  circumstance  that 
forty-five  degrees  are  left  unobstructed  is  merely  an  element 
in  the  question  of  fact  whether  the  access  of  light  is  unduly 
interfered  with ;  but,  be  added,  undoubtedly  there  is  ground 
for  saying  that  if  the  legislature,  when  making  general  regu- 
lations as  to  buildings,  considered  that  when  new  buildings 
are  erected,  the  light  sufficient  for  the  comfortable  occupation 
of  them  will  as  a  general  rule  be  obtained  if  the  buildings  to 
be  erected  opposite  to  them  have  not  a  greater  angular  eleva- 
tion than  forty-five  degrees,  the  fact  that  forty-five  degrees  of 
sky  are  left  unobstructed  may,  under  ordinary  cii'cumstances, 
be  considered  pri7nd  facie  evidence  that  there  is  not  likely  to 
be  material  injury. 

If  obstruction  of  light  produce  no  immediate  injury  to  the 
owners   of  ancient  windows   owing  to  the   circum-    Possibility 
stance  that  they  are    making  use  of  the  house  to   j^^j^y^® 
which  the  windows  belong  in  a  manner  which  does 

6  Beadel  v.  Perry,  L.  R.  3  Eq.  465. 

c  L.  R.  9  Ch.  App.  212;  43  L.  J.  Ch.  458  ;  Hackett  v.  Baiss,  L.  R.  20 
Eq.  494;  45  L.  J.  Ch.  13;  Theed  v.  Debeaham,  2  Ch.  D.  165. 


402  DISTURBANCE   OF   EASEMENTS. 

not  render  the  full  stream  of  the  accustomed  light  necessary, 
it  is  a  question  whether  the  court  will  restrain  the  obstruction, 
on  the  ground  that  damage  to  a  great  extent  may  be  sustained 
at  a  future  time  if  the  premises  are  applied  to  a  different  pur- 
pose. From  the  decision  in  the  case  of  Jackson  v.  The  Duke 
of  Newcastle,**  it  would  seem  that  the  court  will  not  restrain 
the  obstruction  of  light  when  no  immediate  injury  is  sustained, 
because  there  is  a  possibility  of  injury  at  a  future  time,  but 
it  is  questionable  if  this  is  good  law.  The  circumstances  of 
that  case  were,  that  the  window  in  question  belonged  to  a 
small  room  at  the  back  of  a  grocer's  shop,  which  was  called 
the  counting-house,  and  was  used  for  keeping  the  shop  books. 
The  obstruction  caused  no  material  injury  while  the  room 
continued  to  be  used  for  a  counting-house,  but  Lord  West- 
bury,  C,  who,  as  well  as  the  master  of  the  rolls,  appears  to 
have  personally  made  an  examination  of  the  premises,*  said 
he  was  sensible  that  it  was  quite  possible  the  premises  might 
thereafter  be  applied  to  another  purpose,  and  made  applicable 
to  a  different  business  in  which  the  proposed  abridgment  of 
light  and  air  would  operate  most  materially  to  the  prejudice 
of  the  owners  ;  the  question,  therefore,  was  whether  he  could 
interfere  by  way  of  injunction  when  that  injunction  would  be 
founded  not  upon  the  extent  of  present  injury  requiring  that 
interference,  but  upon  an  injury  which,  having  regard  to  a 
future  possible  destination  of  the  premises,  might  materially 
affect  their  value.  He  could  not  find  that  the  question  had 
been  anywhere  determined.  The  ground  of  the  jurisdiction, 
when  stated,  is  always  stated  with  this  accompaniment,  that 
it  must  be  an  injury  for  which  damages  at  law  can  be  ob- 
tained. If  he  regarded  the  injury  for  which  damages  at  law 
could  be  obtained,  it  would  be  the  injury  done  simply  to  the 
counting-house  by  the  proposed  diminution  of  light,  a  diminu- 

<^  33  L.  J.  Ch.  698  (not  in  the  Reports).     . 

*  The  practice  of  a  judge  going  to  inspect  premises  was  expressly  dis- 
approved of  by  Jessel,  M.  R.,  in  Leech  v.  Schweder,  L.  R.  9  Ch.  463; 
43  L.  J.  Ch.  232,  when  a  formal  application  was  made  to  him  to  inspect 
the  premises  in  question.  Several  reasons  were  given  against  the  prac- 
tice. 


LIGHT.  403 

tion  which  he  believed  would  still  leave  the  light  quite  suffi- 
cient for  all  the  purposes  to  which  the  room  was  then  applied. 
It  was  perfectly  true  that  the  premises,  when  they  ceased  to 
be  a  grocer's  shop,  might  be  converted  into  a  jeweller's  shop, 
where  the  sunshine  and  the  light  at  the  back  of  the  premises, 
received  through  the  window  of  the  counting-house,  might  be 
of  the  greatest  possible  value  in  the  conduct  of  that  business, 
or  they  might  be  applied  for  a  silk-mercer's  shop,  when  the 
requisite  quantity  of  light  for  the  purpose  of  distinguishing 
colors,  and  the  shades  and  hues  of  color,  might  be  of  the 
greatest  importance.  The  obstruction  might,  therefore,  in- 
jure the  premises  thereafter,  but  for  the  present  injury  the 
court  would  not  be  justified  in  interfering  by  injunction,  and 
though  both  a  tenant  and  reversioner  might  apply  for  an  in- 
junction, he  apprehended  that  in  each  case  the  application 
must  be  founded  upon  the  present  existing  injury,  and  that 
future  possibilities  could  not  be  speculated  upon  by  the  court. 
The  injunction  which  had  been  granted  by  the  master  of  the 
rolls  was,  therefore,  dissolved.  In  concluding  his  judgment, 
it  should  be  remarked  that  the  lord  chancellor  said  that  he 
had  had  considerable  difficulty  in  arriving  at  his  conclusion, 
which  certainly  he  was  aware  might  stop  short,  in  point  of 
the  exercise  of  jurisdiction,  of  that  which  the  reason  of  the 
case  would  require  if  he  could  have  found  any  authority  to 
warrant  him  in  going  the  length  that  he  thought  it  would  be 
reasonable  to  go  ;  but  that  he  had  found  nothing  which  au- 
thorized him  to  look  into  the  possible  future,  or  to  speculate 
about  the  future  condition  of  the  premises,  and  he  was  obliged, 
therefore,  to  confine  his  right  of  interference  to  that  which 
the  exigency  of  the  present  circumstances  justified  and  ren- 
dered necessary. 

A  few  remarks  are  to  be  made  upon  this  decision.  The 
point  there  decided  was  said  by  Lord  Westbury  to  be  decided 
for  the  first  time ;  but  assuming  that  the  basis  of  that  decision 
was  sound,  and  that  the  possibility  of  injury  at  a  futui'e  time, 
if  the  premises  should  happen  to  be  used  for  a  difl:erent  pur- 
pose, ought  not  to  be  taken  into  consideration,  ought  not  the 
injunction  to  have  been  granted  on  a  different  ground?     It 


404  DISTURBANCE   OF  EASEMENTS. 

has  been  shown-''  that  the  general  rule,  which  may  be  deduced 
from  the  various  cases  decided  on  the  subject  of  obstruction 
of  light,  is,  that  a  prescriptive  right  to  light  is  a  right  to  that 
amount  of  light  which  has  been  accustomed  to  enter  a  win- 
dow irrespectively  of  the  purposes  for  which  it  may  have  been 
used,  and  therefore,  that  though  no  actual  injui-y  was  sus- 
tained from  the  darkening  of  the  counting-house  window,  yet 
is  it  not  a  fact  that  the  right  to  the  light  was  injured  to  such 
an  extent  that  either  the  occupier  of  the  premises  or  a  rever- 
sioner might  have  sued?  If  it  is  true  that  a  prescriptive 
right  to  light  is  of  the  extent  above  mentioned,  then  surely 
any  obstruction  of  the  light  accustomed  to  enter,  which  would 
render  the  room  unfit  for  any  ordinary  purpose  to  which  it 
might  be  put,  and  for  which  it  was  adapted  with  the  window 
as  it  then  was,  was  an  injury  to  the  right  for  which  an  action 
or  suit  would  lie.  It  has  also  been  shown  ^  that  it  is  no  an- 
swer to  an  action  for  obstruction  of  a  light  to  say  that  suffi- 
cient light  is  left  for  the  present  purposes  of  the  occupier  of 
the  house  ;  but  did  not  this  decision  uphold  a  contrary  doc- 
trine, that  if  sufficient  light  was  left  for  present  purposes  no 
action  could  be  maintained  for  an  obstruction  ?  In  Aynsley  v. 
Glover,''  Jessel,  M.  R.,  expressed  his  opinion  that  the  decision 
in  Jackson  v.  The  Duke  of  Newcastle  was  wrong,  and  that  it 
was  in  conflict  with  the  decision  in  Yates  v.  Jack.* 

And  doubtless  this  is  the  better  law,  for  in  the  late  case  of 
Moore  v.  Hall  ^  it  was  held  that  in  an  action  for  obstruction  of 
light,  the  jury  may,  in  assessing  damages,  take  into  consider- 
ation the  fact  that  the  use  to  which  the  plaintiff's  premises 
are  put  may  reasonably  be  expected  to  be  altered  in  the  fut- 
ure to  a  use  for  which  they  will  require  the  whole  flow  of 
light  to  which  they  are  entitled.  Manisty,  J.,  said :  "  If  a 
man  has  a  prescriptive  right  to  light  for  certain  windows,  he 
loses  none  of  his  right  by  enlarging  those  windows  ;  he  still 

J"  Ante,  chapter  III.  p.  289, 

If  Ante,  p.  386. 

^  L.  R.  18  Eq.  544;  43  L.  J.  Ch.  777. 

<  L.  R.  1  Ch.  App.  295;  35  L.  J.  Ch.  539. 

1  3  Q.  B.  D.  178  ;  26  Weekly  Rep.  401. 


LIGHT.  405 

has  a  right  to  the  same  flow  of  light,  and  it  matters  not  to 
what  use  he  may  put  it.  The  jury  may  therefore  contem- 
plate his  requiring  his  prescriptive  flow  of  light  for  other  pur- 
poses than  those  for  which  he  at  present  uses  it.  By  using 
the  same  flow  of  light  to  a  greater  extent  the  service  of  the 
servient  tenement  is  not  increased  or  diminished.  Cockburn, 
C.  J.,  added :  "  The  measure  of  damages  has  nothing  to  do 
with  the  use  to  which  the  premises  are  being  put  at  the  time. 
Let  us  take  a  practical  case.  Suppose  a  man  builds  a  house 
and  opens  windows,  the  owner  of  a  tenement  against  which 
he  is  gaining  a  prescriptive  right  to  light  does  not  consider 
for  what  purpose  the  light  is  being  or  will  be  used  ;  nor  when 
the  right  is  gained  does  he  consider  it.  Martin  v.  Goble,  1 
Camp.  320,  was  decided  on  a  wrong  principle.  If  you  change 
the  use  of  the  light  from  a  superior  to  an  inferior  use,  say 
from  a  mansion  to  a  factory,  it  cannot  be  said  that,  because 
in  the  second  use  you  require  less  light  than  formerly,  the 
owner  of  the  servient  tenement  will  have  any  power  to  ob- 
struct your  light  to  the  extent  of  the  difference  between  the 
light  formerly  and  now  required  for  the  progress  of  the  build- 
ing. The  true  measure  of  damages  is  the  diminution  in  value 
of  the  premises.  How  can  that  be  ascertained  ?  The  rooms 
which  are  now  used  as  bedrooms  may,  in  a  very  short  time, 
be  required  for  some  other  purpose  for  which  they  will  want 
all  the  light  which  had,  previously  to  the  erection  of  defend- 
ant's building,  flowed  in.  In  estimating  damages,  the  jury 
may  fairly  take  into  consideration  whether  the  house  will 
probably  be  continued  to  be  used  in  the  same  way,  or  whether 
there  is  a  reasonable  probability  that  in  the  hands  of  either 
its  present  or  future  owner  it  may  be  used  in  some  other  way. 
If  this  was  not  so,  we  should  have  a  varying  rule  and  contin- 
ual actions."  ^ 

1  In  Martin  v.  Goble,  1  Camp.  320,  referred  to  and  dissented  from  by 
the  chief  justice,  it  was  said:  "It  was  not  enough  that  the  windows 
were  to  a  certain  degree  darkened  by  this  wall,  which  the  defendant  had 
erected  on  his  own  ground.  The  house  was  entitled  to  the  degree  of  light 
necessary  for  a  malt-house,  not  for  a  dwelling-house.  The  converting  it 
from  the  one  into  the  other  could  not  affect  the  rights  of  the  owners  of  the 
adjoining  ground.     No  man  could,  by  any  act  of  his,  suddenly  impose  a 


406  DISTURBANCE   OF   EASEMENTS. 

Besides  the  before-mentioned  remedies  for  obstruction  of 
Eight  to  ligbt,  there  is  one  which  the  law  will  sanction, 
stracdon'of  though  it  is  rarely  employed,  and  is  of  a  dangerous 
light-  character.     The  obstructing  object  may  be  removed 

by  the  person  whose  right  is  injured.  It  is  dangerous,  how- 
ever, to  employ  this  remedy,  for  the  tendency  of  such  a  course 
is  to  lead  to  riot  and  trespass,  and  it  is,  therefore,  much  to 
be  avoided.  Referring  to  this  mode  of  remedy  in  the  case 
of  Hyde  v.  Graham,''  Pollock,  C.  B.,  said :  "  No  doubt,  in 
Blackstone's  Commentaries,  some  instances  are  given  where  a 
person  is  allowed  to  obtain  redress  by  his  own  act,  as  well  as 
by  operation  of  law,  but  the  occasions  are  very  few,  and  they 
might  constantly  lead  to  breaches  of  the  peace ;  for  if  a  man 
has  a  right  to  remove  a  gate  placed  across  the  land  of  another, 
he  would  have  a  right  to  do  it,  even  though  the  owner  was 
there  and  forbade  him.  The  law  of  England  appears  to  me, 
both  in  spirit  and  in  principle,  to  prevent  persons  from  re- 
dressing their  grievances  by  their  own  act."  Notwithstanding 
this,  however,  it  has,  in  olden  cases,  been  held  that  the  owner 
of  ancient  lights  may  himself  abate  an  obstruction  erected  on 
the  servient  tenement.  Salkeld  reports  that,  "  If  H.  builds 
a  house  so  near  mine  that  it  stops  my  lights,  or  shoots  the 
water  upon  my  house,  or  is  any  other  way  a  nuisance  to  me, 
I  may  enter  ujjon  the  owner's  soil  and  pull  it  down  ;  and  for 
this  reason  only  a  small  fine  was  set  upon  the  defendant  in  an 
indictment  for  a  riot  in  pulling  down  some  part  of  a  house,  it 
being  a  nuisance  to  his  lights  and  the  right  found  for  him  in 
an  action  for  stopping  his  lights."  *  The  right  to  abate  an  ob- 
struction to  light  is  also  recognized  by  Chief  Justice  Holt ;  ^ 

new  restriction  upon  his  neighbor.  This  house  had  for  twenty  years  en- 
joyed light  sufficient  for  a  malt-house,  and  up  to  this  extent  and  no  farther, 
the  plaintiffs  could  still  require  that  light  should  be  admitted  to  it.  The 
question,  therefore,  was  whether  if  it  still  remained  in  the  condition  of  a 
malt-house,  a  proper  degree  of  light  for  the  purpose  of  making  malt  was 
now  prevented  from  entering  it  by  reason  of  the  wall  which  the  defendant 
had  erected." 

■>■  1  H.  &  C.  at  p.  598. 

*  Rex  V.  Rosewell,  2  Salk.  459. 

'  Arnold  v.  Jefferson,  Holt,  498. 


LIGHT.  407 

for  be  said,  in  a  case  in  which  the  action  would  not  lie,  that 
the  plaintiff  might  himself  abate  the  nuisance,  but  he  also 
added  that  while  doing  it  the  plaintiff  must  stand  upon  his 
own  ground  ! 

IN    AMERICA, 

the  easement  of  light  not  being  generally  recognized,  except 
in  cases  of  express  grant,  the  instances  of  injunctions  against 
obstructing  lights  are  not  frequent ;  but  wherever  the  right  is 
duly  acquired,  the  remedy  at  law  or  in  equity  is  resorted  to 
and  applied. 1  Thus,  in  Janes  v.  Jenkins^  an  action  was  sus- 
tained upon  this  state  of  facts.  In  that  case  A.,  the  owner  of 
two  adjoining  lots,  called  the  east  and  west  lots,  leased  the 
east  lot  for  ninety-nine  years,  with  a  covenant  that  the  lessee 
might  make  openings,  and  place  lights  in  the  wall  which  he 
contemplated  erecting  on  the  west  line  of  said  lot.  The  wall 
was  erected  and  lights  placed  in  it  overlooking  the  west  lot, 
which  A.  subsequently  conveyed  to  B.  Subsequently  to  the 
erection  of  the  wall,  and  the  last  deed  to  B.,  A.  sold  the  east 
lot  to  C,  by  a  deed  containing  this  clause:  with  "all  and 
every  the  rights,  alleys,  ways,  waters,  privileges,  appurte- 
nances, and  advantages  to  the  same  belonging  or  in  any  wise 
appertaining."  The  deed  of  the  west  lot  to  B.  contained  a 
special  covenant  of  warranty,  and  in  an  action  thereon  for  an 
alleged  breach  by  reason  of  the  existence  of  the  wall  on  the 
east  lot,  overlooking  the  other,  whereby  the  grantee  was  pre- 
vented from  building  on  the  same,  it  was  held  that  the  owner 
of  the  east  lot  had  acquired  by  his  grant  a  right  to  maintain 
the  wall  and  windows,  and  overlook  the  other  lot,  and  the  case 
of  Story  V.  Odin  ^  was  cited  and  approved.  Perhaps  the  pe- 
culiar phraseology  of  the  grant  in  this  case  may  have  aided  in 
arriving  at  the  conclusion,  but  the  court  seems  to  fully  adopt 
the  broad  English  doctrine. 

In  Clawson  v.  Primrose,  in  the  Court  of  Chancery  of  Del- 
aware,* an  injunction  was  granted  by  Chancellor  Bates,  to  re- 

1  See  Doyle  v.  Lord,  64  N.  Y.  432. 

2  34  Md.  1. 

8  12  Mass.  157. 

*  24  Am.  Law  Reg.  6;  Jan.  1876.     And  see  the  very  valuable  note  to 
the  case  by  Sidney  Biddle,  Esq.,  of  the  Philadelphia  Bar. 


408  DISTURBANCE   OF  EASEMENTS. 

strain  the  erection  of  a  building  by  the  defendant  on  a  vacant 
lot  adjoining  the  plaintiff's  house,  whose  windows  had  over- 
looked the  defendant's  lot  for  over  thirty-five  years,  and  the 
chancellor,  in  an  elaborate  judgment,  adopted  the  English 
common  law  as  to  the  acquisition  of  a  right  to  light  by  pre- 
scription. So  the  same  result  was  reached  in  Robeson  v.  Pit- 
tenger,^  in  the  Court  of  Chancery  of  New  Jersey,  in  1838. 
There  S.,  owning  two  lots,  built  a  dwelling-house  on  one  "  im- 
mediately on  the  line  of  "  the  other,  with  six  windows,  which 
opened  and  received  light  and  air  from  the  other.  The  house 
came  into  the  possession  of  the  plaintiff,  and  the  other  lot  into 
that  of  the  defendant,  who  purposed  to  erect  a  building 
thereon  which  would  darken  the  plaintiff's  windows.  The 
plaintiff  obtained  an  injunction  against  the  same,  partly  upon 
the  ground  that  the  windows  had  existed  for  more  than 
twenty  years,  and  partly  because  "  the  adjoining  lot  was 
owned  by  the  man  who  built  the  house  and  subsequently  sold 
it  to  the  plaintiff." 

In  Brumraell  v.  Wharin^  the  owner  of  two  adjoining  shops 
in  the  principal  street  of  Toronto,  leased  one  of  them  to  the 
plaintiff,  with  all  "  the  privileges  and  appurtenances  thereto 
belonging  or  used  therewith^  One  "  privilege  "  so  used  was 
that  the  front  window,  having  also  a  side  view  in  which  to 
display  goods,  had  been  long  used  for  that  purpose,  and  was 
a  valuable  privilege.  Subsequently  he  leased  the  other  shop 
to  the  defendant,  who  placed  a  show  case  at  the  doorway  of 
his  shop,  which  interfered  with  the  view  from  the  plaintiff's 
window.  He  was  held  liable  to  an  injunction  from  contin- 
uing such  obstruction,  principally  on  the  case  of  Riviere  v. 
Bower.3 

1  1  Green  Ch.  K.  57.  And  see  Kay  v.  Stallman,  2  Weekly  Notes,  643. 
But  probably  the  right  itself  would  not  now  be  recognized  in  New  Jersey 
upon  that  state  of  facts.  See  Hayden  v.  Dutcher,  4  Stew.  N.  J.  Eq.  217  ; 
and  the  very  late  case  of  Rennyson  v.  Rozell,  Sup.  Ct.  of  Penn.  Jan.  7, 
1880. 

a  12  Grant's  (U.  C.)  Ch.  R.  283  (1866). 

8  Ry.  &  Mood.  24. 


SUPPORT.  409 


SUPPORT. 


Many  questions  of  difficulty  bave  of  late  years  arisen  rel- 
ative to  the  cases  in  which  a  party  who  has  sustained  damage 
from  the  removal  of  support  from  his  land  or  buildings  is  in 
a  position  to  sue  the  person  by  whom  the  damage  has  been 
caused  ;  and  in  this  respect  it  will  be  found  that  the  princi- 
ples of  law  which  apply  in  the  case  of  natural  rights  are 
somewhat  different  from  those  which  apply  in  the  case  of 
easements  or  acquired  rights  to  support. 

With  reference  to  the  natural  right  of  support,  every  land- 
owner has  primd  facie  an  unqualified  right  to  sup-   Right  to 
port  for  his  land  from  the  adjacent  and  subjacent   turbance'of 
soil,  although  it  may  be   the  property    of   another   "^'^j^'g^^Q 
person,  and  the  dominant  owner  is  therefore  entitled   support. 
to  sue  him  if  he,  without  justification,  removes  or  excavates 
in  his  own  soil  to  the  detriment  of  the  dominant  land  ;  and 
this  is  the  case,  although  the  operation  of  excavating  or  re- 
moving the  soil  has  not  been  conducted  negligently,  or  in  a 
manner  contrary  to  the  custom  of  the  country  where  the  land 
is  situated.™ 

The  natural  and  unqualified  right  to  support,  however,  to 
which  all  landowners  are  entitled,  is  a  right,  as  has   ^^^^^  ^^ 
already  been  explained,  not  to  any  particular  means    erecting 

1  11  i-i-  i.     buildings. 

of  support,  but  merely  that  the  use  and  enjoyment 
of  the  dominant  estate  in  its  natural  condition  shall  not  be 
abridged  by  any  act  of  the  servient  owner  in  his  own  soil,  and 
the  existence  of  this  right  cannot  operate  as  a  restriction  upon 
the  servient  owner  to  prevent  him  excavating  so  long  as  the 
dominant  tenement  is  not  disturbed.  On  the  other  hand,  the 
natural  right  cannot  be  increased  by  the  dominant  owner,  as, 
for  instance,  by  placing  an  artificial  weight  on  the  land  by  the 
erection  of  buildings,  for  no  man  can,  by  his  own  act,  impose 
a  new  burden  on  his  neighbor,  and  therefore  if  buildings  are 
erected,  the  servient  owner  cannot  be  held  responsible  at  law, 
if  he  by  excavating,  as  he  lawfully  might  had  the  buildings 

»»  Humphries  v.  Brogden,  12  Q.  B".  739;  20  L.  J.  Q.  B.  10;  Brown  v. 
Robins,  4  H.  &  N.  186;  28  L.  J.  Exch.  250. 


410  DISTURBANCE   OF   EASEMENTS. 

not  been  there,  causes  the  buildings  to  fall :  thus  it  was  said 
by  Lord  Tenterden,  C.  J.,  in  Wyatt  v.  Harrison,"  that  it  may 
be  true  that  if  my  land  adjoins  that  of  another  man,  and  I 
have  not  by  building  increased  the  weight  upon  my  soil,  and 
my  neighbor  digs  in  his  land  so  as  to  occasion  mine  to  fall  in, 
he  may  be  liable  to  an  action  ;  but  if  I  have  laid  an  additional 
weight  upon  my  land  it  does  not  follow  that  he  is  to  be  de- 
prived of  the  right  of  digging  his  own  ground  because  mine 
will  then  become  incapable  of  supporting  the  artificial  weight 
which  I  have  laid  upon  it.  It  is  true  that  a  doubt  has  been 
expressed  whether  the  natural  right  to  support  from  subjacent 
soil  does  not  extend  to  buildings  erected  on  the  surface  of  the 
ground,"  but  this  idea  is  not  sufficiently  supported  by  author- 
ity to  be  considered  law,  and  is  inconsistent  with  the  above- 
mentioned  principle  that  no  man  can  by  his  own  act  impose  a 
new  burden  on  his  neighbor.  Though,  however,  the  erection 
of  houses^  on  land  cannot  saddle  the  servient  owner  with  a 
greater  obligation  not  to  remove  supporting  soil  than  that  to 
which  he  was  subject  before  they  were  built,  yet  the  servient 
owner  is  not  by  the  fact  of  newly  erected  buildings  increasing 
the  weight  on  his  soil  relieved  from  any  part  of  his  former 
obligation,  and  if  the  land  of  the  dominant  owner  sinks,  by 
reason  of  excavation  in  the  servient  tenement,  not  in  conse- 
quence of  the  additional  weight  imposed  on  the  surface,  but 
just  as  it  would  have  sunk  had  no  houses  been  erected,  the 
servient  owner  will  be  held  liable,  not  only  for  the  damage  to 
the  land,  but  also  for  the  consequential  damage  caused  to  the 
newly-erected  houses.^ 

IN   AMERICA, 

the  prevailing  rule  seems  to  be,  notwithstanding  the  English 
cases  of  Brown  v.  Robins  and  Stroyan  v.  Knowles,  that  if  the 
land  and  buildings  of  the  plaintiff  both  fall  into  an  excava- 

»  3  B.  &  Ad.  871 ;  1  L.  J.  N.  S.  K.  B.  237. 

°  Rogers  V.  Taylor,  2  H.  &  N.  828;  27  L.  J.  Exch.  173. 

1' Brown  v.  Robins,  4  H.  &  N.  186;  28  L.  J.  Exch.  250;  Stroyan  v. 
Knowles,  6  H.  &  N.  454;  30  L.  J.  Exch.  102.  But  see  Smith  v.  Thack- 
erah,  L.  R.  1  C.  P,  564;  35  L.  J.  C.  P.  276. 


SUPPORT.  411 

tion  wrongfully  made  by  the  defendant,  for  want  of  lateral 
support,  if  the  plaintiff  has  only  the  natural  right  of  support 
for  his  soil,  and  has  not  acquired  any  more  extensive  right  for 
the  support  of  buildings,  he  can  recover  only  for  damages  to 
his  land^  and  cannot  include  any  loss  for  buildings  or  im- 
provements on  the  land,  such  as  fences,  trees,  shrubs,  &c.^ 
And  even  in  England  it  has  been  held  since  Brown  v.  Rob- 
ins and  Stroyan  v.  Knowles,  that  no  action  will  lie  for  the 
fall  of  land  and  buildings,  unless  some  actual  perceptible  dam- 
age is  done  to  the  land^  without  the  buildings,  even  though 
the  jury  find  that  the  land  would  have  fallen  had  there  been 
no  buildings  upon  it.^  The  weight  of  American  authority  is 
in  favor  of  the  general  principle  that  no  action  will  lie  for  in- 
jury to  buildings^  by  excavating  adjoining  vacant  land,  unless 
the  plaintiff  has  acquired  a  right  to  such  support  by  grant  or 
prescription,  or  unless  he  has  been  guilty  of  negligence  in 
making  his  excavation.^ 

In  Thurston  v.  Hancock,*  which  was  decided  in  1815,  and 
is  the  leading  American  case  on  this  subject,  the  plaintiff  in 
1802  bought  a  parcel  of  land  upon  Beacon  Hill  in  Boston, 
bounded  on  the  west  by  land  of  the  town  of  Boston  ;  and  in 
1804  built  a  brick  dwelling-house  thereon,  with  its  rear  two 
feet  from  this  boundary,  and  its  foundation  fifteen  feet  below 
the  ancient  surface  of  the  land.  The  defendants  in  1811  took 
a  deed  of  the  adjoining  land  from  the  town,  and  began  to  dig 
and  remove  the  earth  therefrom,  and,  though  notified  by  the 
plaintiff  that  his  house  was  endangered,  continued  to  do  so  to 
the  depth  of  forty-five  feet,  and  within  six  feet  of  the  rear  of 

1  Gilmore  v.  Driscoll,  122  Mass.  199.  There  may  be  some  question 
whether  an  ordinary  fence  will  so  increase  the  weight  of  land  as  to  prevent 
a  recovery  therefor.     See  O'Neil  v.  Harkins,  8  Bush,  651. 

2  Smith  V.  Thackerah,  L.  R.  1  C.  P.  564. 

8  See  Panton  v.  Holland,  17  John.  92;  McGuire  v.  Grant,  1  Dutcher, 
356;  Richardson  v.  Vermont  Central  Railroad,  25  Vt.  465;  Lasala  v.  Hol- 
brook,  4  Paige,  169;  Richart  v.  Scott,  7  Watts,  460;  Radcliflf  v.  Mayor 
of  Brooklyn,  4  Comst.  195;  Mitchell  u.  Mayor,  49  Ga.  19;  City  of  Quincy 
V.  Jones,  76  111.  231;  Shrieve  v.  Stokes,  8  B.  Monr.  453;  Charless  v.  Ran- 
kin, 22  Mo.  566. 

4  12  Mass.  220. 


412  DISTURBANCE   OF   EASEMENTS. 

the  plaintiff's  house,  and  thereby  caused  part  of  the  earth  on 
the  surface  of  the  plaintiff's  land  to  fall  away  and  slide  upon 
the  defendant's  land,  and  rendered  the  foundations  of  the 
plaintiff's  house  insecure,  and  the  occupation  thereof  danger- 
ous, so  that  he  was  obliged  to  abandon  it. 

The  court,  after  advisement,  and  upon  a  review  of  the  ear- 
lier English  authorities,  held  that  the  plaintiff  could  recover 
for  the  loss  of  or  injury  to  the  soil  merely,  and  not  for  the 
damage  to  the  house  ;  and  Chief  Justice  Parker,  in  delivering 
judgment,  said  :  "  It  is  a  common  principle  of  the  civil  and  of 
the  common  law,  that  the  proprietor  of  land,  unless  restrained 
by  covenant  or  custom,  has  the  entire  dominion,  not  only  of 
the  soil,  but  of  the  space  above  and  below  the  surface,  to  any 
extent  he  may  choose  to  occupy  it.  The  law,  founded  upon 
principles  of  reason  and  common  utility,  has  admitted  a  quali- 
fication to  this  dominion,  restricting  the  proprietor  so  to  use 
his  own,  as  not  to  injure  the  property  or  impair  any  actual 
existing  rights  of  another.  jSic  utere  tuo  ut  alienum  non 
Icedasy  "But  this  subjection  of  the  use  of  a  man's  own  prop- 
erty to  the  convenience  of  his  neighbor  is  founded  upon  a  sup- 
posed preexisting  right  in  his  neighbor  to  have  and  enjoy  the 
privilege  which  by  such  act  is  impaired."  "  A  man,  in  dig- 
ging upon  his  own  land,  is  to  have  regard  to  the  position  of 
his  neighbor's  land,  and  the  probable  consequences  to  his 
neighbor,  if  he  digs  too  near  his  line  ;  and  if  he  disturbs  the 
natural  state  of  the  soil,  he  shall  answer  in  damages  ;  but  he 
is  answerable  only  for  the  natural  and  necessary  consequences 
of  his  act,  and  not  for  the  value  of  a  house  put  upon  or  near 
the  line  by  his  neighbor."  "  The  plaintiff  built  his  house 
within  two  feet  of  the  western  line  of  the  lot,  knowing  that 
the  town,  or  those  who  should  hold  under  it,  had  a  right  to 
build  equally  near  to  the  line,  or  to  dig  down  into  the  soil  for 
any  other  lawful  purpose.  He  knew  also  the  shape  and  nat- 
ure of  the  ground,  and  that  it  was  impossible  to  dig  there 
without  causing  excavations.  He  built  at  his  peril ;  for  it  was 
not  possible  for  him,  merely  by  building  upon  his  own  ground, 
to  deprive  the  other  party  of  such  use  of  his  as  he  should 
deem  most  advantageous.     There  was  no  right  acquired  by 


SUPPORT.  413 

his  ten  years'  occupation,  to  keep  his  neighbor  at  a  convenient 
distance  from  him."    "It  is,  in  fact,  damnum  absque  mjuriaJ''' 

Upon  the  facts  of  that  case,  it  was  questionable  whether  the 
acts  of  the  defendant  would  not  have  caused  the  falling  away 
of  the  plaintiff's  land  if  no  house  had  been  built  thereon  ;  and 
yet  the  court  held  the  plaintiff  not  to  be  entitled  to  recover 
any  damages  for  the  fall  of  his  house,,  without  regard  to  the 
question  whether  the  weight  of  the  house  did  or  did  not  con- 
tribute to  the  fall  of  his  soil  into  the  pit  digged  by  the  de- 
fendant. Forty  years  afterwards,  the  decision  in  Thurston  v. 
Hancock  was  followed  and  confirmed.^ 

With  reference  to  buildings  the  owner  has  not  primd  facie 
any  right  to  support  either  from   the  subjacent  or 
adjacent  soil  or  from  adjoining  buildings,  and  the   eue  for  dis- 

r   ,1  1      M  T  •       j-1  c  j^    •  •       turbance  of 

owner  oi  those  buiidmgs  is,  thereiore,  not  in  a  posi-  support  to 
tion  to  sue  for  damage  sustained  in  consequence  of  ^'^•''^'"S^- 
the  removal  of  support  unless  he  can  prove  that  he  has  ac- 
quired a  right  that  the  injured  building  should  be  supported 
either  by  prescription  or  under  a  grant.  If  the  dominant 
owner  has  acquired  and  can  prove  the  existence  of  such  a 
right,  his  position  is  very  similar  to  that  of  the  owner  of  a 
natural  right  to  support,  and  he  can  sue  the  servient  owner 
for  any  unjustifiable  disturbance  of  his  right.  That  disturb- 
ance of  the  right  to  support  may  be  justified  in  certain  cases 
there  can  be  no  doubt,  though  cases  of  the  kind  are  probably 
rare.  In  the  case  of  Murchie  v.  Black,'  the  action  was  brought 
to  recover  compensation  for  damages  alleged  to  have  been 
sustained  by  reason  of  the  defendant  having  caused  the  plain- 
tiff's house  to  fall  by  removing  lateral  support,  and  it  ap- 
peared that  the  plaintiff's  house  and  the  defendant's  land  had 
been  purchased  from  the  same  vendor,  at  the  same  time,  and 
by  the  conditions  of  sale  the  defendant  was  required  to  build 
on  his  land  in  a  particular  manner  ;  it  was  shown  that  it  was 
through  the  excavation  which  was  necessary  for  building  in 
the  manner  prescribed  that  the  support  was  removed  from  the 
plaintiff's  house,  which  afterwards  fell  down  ;  it  was  therefore 

1  Foley  V.  Wyeth,  2  Allen,  131. 

9  19  C.  B.  N.  S.  190 ;  34  L.  J.  C.  P.  337. 


414  DISTURBANCE   OF   EASEMENTS. 

said  that  the  vendor  sold  the  land  to  the  defendant  nnder  a 
contract  by  which  it  was  obligatory  on  him  to  do  that  which 
brought  down  the  plaintiff's  house,  and  consequently  that  the 
stipulation  in  the  contract  justified  the  defendant  in  doing 
that  which  would  otherwise  have  formed  a  cause  of  action. 

It  was  pointed  out  above  that  if  a  person  entitled  to  sup- 
Effect  of  P°^'^  ^^^'  ^'^"^  ^y  natural  right  erects  buildings,  and 
increasing     qu  the  owner  of  neighboring  land  digging  sustains 

the  weight       ,  ^  ,       r  1  -7  1  1 

of  build-  damage  from  removal  of  support  which  would  not 
'°^*"  have  been  received  had  he  not  imposed  the  artificial 

weight  on  the  land,  the  neighbor  is  not  liable  for  the  dam- 
age ;  so  also  if  a  right  to  support  for  a  building  of  a  partic- 
ular weight  has  been  acquired  as  an  easement,  the  servient 
owner  is  not  responsible  for  damage  occasioned  to  that  build- 
ing when  he  excavates  in  his  own  land,  and  removes  the  ac- 
customed support,  if  the  dominant  owner  has  increased  the 
weight  of  his  building  by  adding  new  erections,  and  if  it  was 
solely  in  consequence  of  the  increase  of  weight  that  the  dam- 
age occurred/  If,  however,  the  dominant  owner  has  increased 
the  weight  of  his  buildings  and  the  excavation  by  the  servient 
owner  is  of  such  a  character  that  the  house  must  have  fallen 
in  any  event,  even  though  the  weight  had  not  been  increased, 
it  does  not  seem  to  be  clear  whether  the  dominant  owner  has 
a  cause  of  action  or  not.  From  the  principle  of  law  in  the 
case  of  natural  rights  to  support  above  mentioned,  that  the 
servient  owner  is  not  by  the  fact  of  newly  erected  buildings 
increasing  the  weight  on  his  soil  relieved  from  any  part  of  his 
former  obligation,  so  that  he  is  still  liable  in  the  event  of  the 
dominant  owner's  land  sinking  by  reason  of  the  excavation  in 
the  servient  tenement,  provided  the  sinking  would  have  oc- 
curred had  no  additional  weight  been  imposed,  it  would  seem 
that  if  the  dominant  owner  increases  the  weight  of  a  house 
for  which  he  is  entitled  to  support,  and  the  servient  owner 
excavates  in  such  a  manner  that  the  house  must  have  fallen 
in  any  event,  even  though  the  Aveight  of  the  house  had  not 
been  increased,  the  law  would  hold  the  servient  owner  respon- 
sible for  the  damage.  There  is,  however,  no  direct  authority 
»•  Murchie  v.  Black,  19  C.  B.  N.  S.  190  ;  3-1  L.  J.  C.  P.  337. 


SUPPORT.  415 

in  support  of  this  principle,  but,  on  the  contrary,  in  the  case 
of  Murchie  v.  Black,  Willes,  J.,  is  reported  to  have  said : 
"  Assuming  the  plaintiff  to  have  had  the  right  to  the  support 
of  the  adjoining  land,  I  think  he  lost  it  by  what  my  lord  has 
adverted  to  "  (that  is,  by  the  fact  of  his  having  added  to  his 
house  and  increased  the  weight  on  the  servient  tenement). 
"  This  is  not  like  the  case  of  ancient  lights,  but  an  additional 
weight  placed  upon  an  old  wall,  and  thereby  the  entire  build- 
ing must  be  treated  as  one  weight ;  just  as  if  a  carpenter  were 
to  make  a  table  capable  of  sustaining  one  hundred  weight, 
and  a  person  were  to  put  half  a  ton  upon  it,  and  the  table 
were  to  break  in  consequence  of  the  increased  pressure,  could 
any  complaint  be  made  against  the  carpenter  ?  " 

It  may  be  taken,  then,  that  an  owner  of  buildings  cannot 
maintain  any  action  for  removal  of  support  against   j^-  j^^  ^j 
the  owner  of  the  adjacent  or  subjacent  soil,  until  he   action 

,  '',  against  a 

has  by  some  means  acquired  a  right  to  support  for  wrong-doer 
his  buildings.  This,  however,  is  not  the  case  if  a  ing  sup- 
wrong-doer  —  a  person  who  has  no  right  in  the  soil  ^°^^' 
—  interferes  with  it,  and  by  removing  the  support  causes  the 
buildings  to  fall :  for,  in  such  case,  an  action  will  lie  against 
him  at  the  suit  of  the  owner  of  the  damaged  buildings,  even 
though  the  latter  has  not  acquired  any  right  to  support.  This 
was  determined  in  two  cases,  in  which  there  is  no  reason  to 
suppose  that  the  persons  who  removed  the  support  were  actu- 
ally wrong-doers,  but  the  form  of  the  pleadings  was  such  that 
for  the  purposes  of  the  actions  the  Court  of  Exchequer  was  of 
opinion  that  they  must  be  taken  to  have  been  wrong-doers.* 
In  Jeffries  v.  Williams,  the  earliest  of  these  cases,  the  decla- 
ration alleged  that  the  houses  injured  belonged  to  the  plain- 
tiffs, and  that  the  defendant  so  wrongfully,  carelessly,  negli- 
gently, and  improperly,  and  without  leaving  any  proper  or 
sufficient  support  in  that  behalf,  worked  certain  mines  under 
ground  near  and  contiguous  to,  and  under  the  premises,  that 
the  houses  were  injured.  The  court  thought  that  the  declara- 
tion was  sufficient.     It  had  been  objected  that  the  declaration 

«  Jeffries  v.  Williams,  5  Exch.  792;  20  L.  J.  Exch.  14;  Bibby  v.  Carter, 
4  H.  &  N.  153  ;  28  L.  J.  Exch.  182. 


416  DISTURBANCE   OF   EASEMENTS. 

contained  no  allegation  that  the  plaintiffs  had  any  right  to 
have  the  premises  supported  by  the  soil  under  which  the  de- 
fendant got  the  minerals,  but  the  court  said  that  if  it  had 
appeared  in  the  declaration  that  the  soil  in  which  the  mines 
were  was  the  defendant's,  or  that  the  defendant  had  the  right 
to  get  the  minerals,  the  objection  would  have  been  fatal,  be- 
cause, arguing  against  a  person  having  the  right  to  the  ad- 
joining soil,  it  would  be  necessary  for  the  plaintiffs  to  show  a 
title  to  the  support  of  the  soil  ;  but  if  the  defendant  is  not 
stated  in  the  declaration  to  have  any  such  right,  and  is  there- 
fore j3nw(^ /acj'g  a  wrong-doer,  the  declaration  would  be  suffi- 
cient. If,  it  was  continued,  a  house  is  de  facto  supported  by 
the  soil  of  a  neighbor,  that  appeared  to  the  court  to  be  a  suffi- 
cient title  against  any  one  but  that  neighbor,  or  one  claiming 
under  him  ;  just  as  a  person  who  had  propped  a  house  up  by 
a  shore  resting  on  his  neighbor's  ground  would  have  a  right 
of  action  against  a  stranger  who,  by  removing  it,  caused  the 
house  to  fall,  though  he  would  not  have  such  a  right  against 
the  neighbor,  or  one  authorized  by  the  neighbor  to  do  so,  if 
he  were  to  take  it  away  and  cause  the  same  damage. 

Until  the  decision  in  the  case  of  Bonomi  v.  Backhouse '  in 
"When  a  the  House  of  Lords,  it  was  a  point  of  some  doubt 
action °for  when  a  cause  of  action  arises  if  support  is  destroyed ; 
removal  of    ^vhetlier   a   dominant    owner   can    sue    immediately 

support  ^  _  '' 

accrues.  support  is  removed,  or  whether  he  has  no  right  of 
action  till  he  has  sustained  damage  in  consequence  of  the 
servient  owner's  act.  It  will  be  seen  that  this  point  is  not 
one  of  such  difficulty  as  it  at  first  sight  appears,  if  the  nature 
of  the  right  to  support  is  borne  in  mind,  and  if  the  character 
of  the  action  which  is  brought  is  remembered.  Previously  to 
this  decision,  it  had  been  held  that  if  the  support  to  land  or 
houses  to  which  the  owner  is  entitled  is  removed,  a  cause  of 
action  arises  immediately  on  such  removal,  although  no  dam- 
age may  happen  to  ensue,  on  the  ground  that  the  removal  of 
the  support  is  an  injury  to  a  right."     This  decision,  however, 

'Bonomi  v.  Backhouse,  in  Exchequer  Chamber,  E.,  B.  &  E.  646;  27 
L.  J.  Q.  B.  378;  in  House  of  Lords,  9  H.  L.  C.  503;  34  L.  J.  Q.  B.  181. 
«  Nicklin  v.  Williams,  10  Exch.  259;  23  L.  J.  Exch.  335. 


SUPPORT.  417 

was  overruled  in  Bonomi  v.  Backhouse,  Willes,  J.,  who  deliv- 
ered the  judgment  of  the  Court  of  Exchequer  Chamber,  ob- 
serving that  no  authority  is  cited  in  Nicklin  v.  Williams  for  the 
judgment  there  given,  and  that,  although  that  judgment  is  dis- 
tinct upon  the  point,  it  nevertheless  was  extrajudicial ;  it  was 
then  decided,  the  decision  being  affirmed  in  the  House  of  Lords, 
that  if  the  means  of  support  to  which  an  owner  of  land  or 
buildings  is  entitled,  is  removed,  a  cause  of  action  arises  when 
damage  is  actually  sustained,  and  not  immediately  upon  the 
removal  of  the  support.  The  question  in  Bonomi  v.  Bonomi  v. 
Backhouse  arose  with  reference  to  the  statute  of  ^^ckhouse. 
limitations,  for  the  defendant,  more  than  six  years  before  the 
commencement  of  the  action,  had  worked  some  coal  mines, 
but  no  actual  damage  had  occurred  till  within  six  years  before 
the  suit,  and  the  question  consequently  arose  whether  the 
statute  was  an  answer  to  the  action  —  or,  in  other  words, 
whether  the  cause  of  action  accrued  within  the  six  years  ? 
On  account  of  the  importance  of  this  case,  and  the  explana- 
tion of  the  nature  of  the  right  to  support  therein  contained, 
portions  of  the  judgment  of  the  court  are  subjoined.  After 
stating  the  question  in  the  cause,  Willes,  J.,  continued  :  "  The 
right  to  support  of  land,  and  the  right  to  support  of  buildings, 
stand  upon  different  footings  as  to  the  mode  of  acquiring 
them  —  the  former  being  primd  facie  a  right  of  property 
analogous  to  the  flow  of  a  natural  river  or  of  air,"  .... 
"  whilst  the  latter  must  be  founded  upon  prescription  or  grant 
express  or  implied  ;  but  the  character  of  the  rights  when  ac- 
quired is  in  each  case  the  same.  The  question  in  this  case 
depends  upon  what  is  the  character  of  the  right ;  viz.,  whether 
the  support  must  be  afforded  by  the  neighboring  soil  itself,  or 
such  a  portion  of  it  as  would  be,  beyond  all  question,  sufficient 
for  present  and  future  support,  or  whether  it  is  competent  for 
the  owner  to  abstract  the  minerals  without  liability  to  an  ac- 
tion unless  and  until  actual  damage  is  thereby  caused  to  his 
neighbor.  The  most  ordinary  case  of  withdrawal  of  support 
is  in  town  property,  where  persons  buy  small  pieces  of  land 
frequently  by  the  yard  or  foot,  and  occupy  the  whole  of  it 
with  buildings.    They  generally  excavate  for  cellars,  and  in  all 

27 


418  DISTURBANCE   OF   EASEMENTS. 

cases  make  foundations  ;  and  in  lieu  of  support  given  to  their 
neighbor's  land  by  the  natural  soil,  substitute  a  wall.  We 
are  not  aware  that  it  has  ever  been  considered  that  the  mere 
excavation  of  the  land  for  this  purpose  gives  a  right  of  action 
to  the  adjoining  owner,  and  is  itself  an  unlawful  act,  although 
it  is  certain  that  if  damage  ensued  a  right  of  action  would 
accrue.  So,  also,  we  are  not  aware  that,  until  the  case  of 
Nicklin  v.  Williams,  it  had  ever  been  supposed  that  the  get- 
ting coals  or  minerals,  to  whatever  extent,  in  a  man's  own 
land,  was  an  unlawful  act  ;  although,  if  he  thereby  caused 
damage  to  his  neighbor,  he  was  undoubtedly  responsible  for 
it.  The  right  of  action  was  supposed  to  arise  from  the  dam- 
age, not  from  the  act  of  the  adjoining  owner  in  his  own  land. 
The  law  favors  the  exercise  of  dominion  by  every  one  upon 
his  own  land,  and  his  using  it  for  the  most  beneficial  purpose 
to  himself."  After  remarking  that  the  effect  of  the  defend- 
ant's contention,  if  true,  would  be  that  whenever  a  mine  was 
worked  the  worker  would  at  once  be  subjected  to  actions  by 
all  the  surx'ounding  owners  —  who,  indeed,  would  be  com- 
pelled to  sue  in  self-defence  if  there  was  any  reasonable  ground 
to  suppose  that  the  working  would  in  time  produce  damage  to 
their  property,  and  that  in  many  cases  damages  would  be 
given  where  none  could  be  sustained,  while  they  would  in 
other  cases  be  given  where  they  ought  to  be  withheld,  the 
judgment  continued  :  "There  is  no  doubt  that  for  an  injury 
to  a  right  an  action  lies  ;  but  the  question  is.  What  is  the 
plaintiff's  right?  Is  it  that  his  land  should  remain  in  its  nat- 
ural state,  unaffected  by  any  act  done  in  the  neighboring  land, 
or  is  it  that  nothing  should  be  done  in  the  neighboring  land 
from  which  a  jury  would  find  that  damage  might  possibly  ac- 
crue? There  is  no  doubt  that  in  certain  cases  an  action  may 
be  maintained,  although  there  is  no  actual  damage.  The  rule 
laid  down  by  Serjeant  Williams  in  note  (2)  to  Mellor  v. 
Spateman  (1  Wms.  Saund,  346  6)  is,  that  whenever  an  act 
injures  another's  right,  and  would  be  evidence  in  future  in 
favor  of  the  wrong-doer,  an  action  may  be  maintained  for  an 
invasion  of  the  right,  without  proof  of  any  specific  damage. 
This  is  a  reasonable  and  sensible  rule  ;  but  it  has  no  applica- 


SUPPORT.  419 

tion  to  the  present  case  ;  for  the  act  of  the  defendant  in  get- 
ting the  coal  would  be  no  evidence  in  his  favor  as  to  any  fut- 
ure act ;  getting  the  coal  was  an  act  done  by  him  in  his  own 
soil  by  virtue  of  his  dominion  over  it.  If  the  question  was  un- 
affected by  decision,  we  cannot  but  think  that  the  contention 
on  the  part  of  the  plaintiffs  in  error  is  correct.  That  on  be- 
half of  the  defendant  is  that  the  action  must  be  brought 
within  six  years  after  the  excavation  is  made,  and  that  it  is 
immaterial  whether  any  actual  damage  has  occurred  or  not. 
....  On  the  other  hand,  the  plaintiffs  in  error  rely  upon 
the  ordinary  rule  that  damnum  and  injuria  must  concur  to 
confer  a  right  of  action,  and  that,  although  only  one  action 
could  be  maintained  for  damage  in  respect  of  such  a  claim, 
nevertheless  it  would  be  essential  that  some  damage  should 
have  happened  before  a  defendant  was  made  liable  for  an  act 

done  on  his  own  land We  are  not  insensible  to  the 

consideration  that  the  holding  damage  to  be  essential  to  the 
cause  of  action  may  extend  the  time  during  which  persons 
working  minerals  and  making  excavations  niay  be  made  re- 
sponsible ;  but  we  think-  that  the  right  which  a  man  has  is  to 
enjoy  his  own  land  in  the  state  and  condition  in  which  nature 
has  placed  it,  and  also  to  use  it  in  such  a  manner  as  he  thinks 
fit,  subject  always  to  this  —  that  if  his  mode  of  using  it  does 
damage  to  his  neighbor,  he  must  make  compensation.  Apply- 
ing these  two  principles  to  the  present  case,  we  think  that  no 
cause  of  action  accrued  for  the  mere  excavation  by  the  de- 
fendant in  his  own  land,  so  long  as  it  caused  no  damage  to  the 
plaintiff  ;  and  that  the  cause  of  action  did  accrue  when  the 
actual  damage  first  occurred."  The  judgment  of  the  Court  of 
Exchequer  Chamber  was  affirmed  in  the  House  of  Lords,  Lord 
Cranworth  remarking  that  it  had  been  supposed  that  the  right 
of  tlie  party  whose  land  was  interfered  with  was  a  right  to 
what  was  called  "  the  pillars,"  or  the  support ;  but  that  his 
real  right  was  to  the  ordinary  enjoyment  of  his  land,  and  till 
that  was  interfered  with,  he  had  no  cause  of  complaint. 

In  the  case  of  Lamb  v.  Walker,^  recently  decided  by  the 
Queen's  Bench  Division  of  the  English  High  Court  of  Jus-- 
1  3  Q.  B.  D.  389;  38  L.  T.  Rep.  N.  S.  643  (1878). 


420  DISTURBANCE   OF   EASEMENTS. 

tice,  the  plaintiff  sued  the  defendant  for  injury  to  plaintiff's 
buildings  by  mining  operations  of  defendant  on  his  own  lands. 
A  special  referee  found  that  in  addition  to  the  injury  already 
incurred,  the  plaintiff  would  incur  injury  in  the  future,  and 
assessed  the  prospective  damages  at  X150.  It  was  held  by  a 
majority  of  the  court  that  such  damages  were  recoverable. 
Manisty,  J.,  who  delivered  one  of  the  prevailing  opinions, 
states  that  where  no  injury  has  accrued  in  a  case  of  this  kind, 
prospective  damages  are  not  recoverable.  So  long  as  plain- 
tiff's right  to  have  his  land  and  house  supported  by  the  ad- 
joining strata  is  not  interfered  with,  he  has  no  cause  of  action, 
but  as  soon  as  the  support  which  was  left  proved  insufficient, 
defendant's  act  in  withdrawing  the  necessary  support  became 
wrongful,  and  damnum  and  injuria  concurring,  plaintiff's 
cause  of  action  accrued.  The  defendant  contended  that  if 
this  was  so  the  true  measure  of  damage  was  the  injury  actu- 
ally done  up  to  the  time  of  the  commencement  of  the  action, 
and  the  remedy  for  subsequent  injuries  was  by  actions  from 
time  to  time  as  the  injuries  should  accrue.  But  the  answer  to 
this  was  that  it  is  a  well-settled  rule  of  law  that  damages  re- 
sulting from  one  and  the  same  cause  of  action  must  be  as- 
sessed and  recovered  once  for  all,  and  that  in  this  case  there 
was  but  one  cause  of  action.^ 

The  principle  established  by  Nicklin  v.  Williams  was,  in 
Time  to  fact,  recognized  many  years  previously  in  the  case 
Umited  '^    of  Roberts  v.  Read,"  and  it  was  then  even  carried 

1  The  leading  case  cited  on  this  subject  was  Bonomi  v.  Backhouse,  9 
H.  L.  503,  where  it  is  held  that  no  cause  of  action  arises  in  respect  to 
what  a  man  does  on  his  own  land  until  actual  damage  arises  therefrom  to 
the  property  of  the  adjoining  owner.  In  this  case,  when  in  the  lower 
court  (E.,  B.  &  E.  638),  it  was  said  that  "  where  a  right  of  action  is  thus 
vested,  and  an  action  is  brought  for  the  act  alleged  to  have  occasioned  the 
injury,  the  damages  given  by  the  jury  for  that  act  must  be  taken  to  em- 
brace all  the  injurious  consequences  of  that  act,  unknown  as  well  as  known, 
which  shall  arise  thereafter,  as  well  as  those  which  have  arisen ;  for  the 
riffht  of  action  is  satisfied  by  one  recovery."  See,  also,  as  sustaining  the 
same  view,  Nicklin  v.  Williams,  10  Exch.  259;  Hamer  v.  Knowles,  6  H. 
&  N.  454. 

"  16  East,  215;  Gillon  v.  Boddington,  1  C.  &  P.  541. 


SUPPORT.  421 

farther  than  in  the  case  of  Bonomi  v.  Backhouse.   ^^^^  \^^. 

_,.  .  .  commission 

1  he  action  in  the  case  of  Roberts  v.  Read  was  of  an  act. 
brought  by  the  plaintiff  against  certain  surveyors  of  high- 
ways, for  excavating  in  a  road  and  causing  a  wall  to  fall. 
The  excavation  in  the  road  was  made  in  the  month  of  May, 
1810,  but  the  wall  did  not  fall  till  the  31st  January,  1811, 
and  it  was  therefore  objected  by  the  defendant  that  the  ac- 
tion, which  was  commenced  on  the  13th  April,  1811,  was 
brought  too  late,  as  it  was  enacted  by  a  certain  statute  under 
which  the  defendants  had  acted,  that  "  if  any  action  shall  be 
commenced  against  any  persons  for  anything  done  or  acted  in 
pursuance  of  this  act,  such  action  shall  be  commenced  within 
three  calendar  months  after  the  fact  committed,  and  not  after- 
wards :  "  but  the  court  held  that  it  was  sufficient  that  the 
action  was  commenced  within  three  months  after  the  wall  fell, 
for  that  was  the  gravamen,  and  that  the  consequential  damage 
was  the  cause  of  action  in  the  case.  If,  it  was  added,  the  ac- 
tion had  been  for  trespass,  it  must  have  been  brought  within 
three  months  after  the  act  of  trespass  complained  of,  but  be- 
ing an  action  on  the  case  for  the  consequential  damage,  it 
could  not  have  been  brought  till  the  specific  wrong  had  been 
suffered,  and  that  only  happened  within  three  months  before 
the  action  was  brought. 

It  was  remarked  in  a  former  part  of  this  work,  that  rail- 
way and  other  companies  which  purchase  land  with-  ^^^^^^  ^^^ 
out  the  subiacent  mines  under  the  peculiar  powers   Kaiiways 

CIrusgs 

conferred  by  the  Lands  and  Railways  Clauses  Con-   Acts. 
solidation  Acts,  or  under  other  acts  of  a  similar  char-   Right  to 
acter,  are  not  in  the  position  of  ordinary  purchasers   turbanceof 
of  land,  and  do  not  acquire  that  right  to  support  for   s^pp^"^*^- 
the  surface  land  from  the  subjacent  minerals  to  which  ordi- 
nary purchasers  become  entitled  by  implied  grant  or  of  nat- 
ural right."'     In  consequence  of  this,  railway  companies  who, 
after  proper  notice  from   the  mine-owner   according  to  the 
terms  of  the  act,  refuse  to  purchase  the  mines,  are  incapable 
of  suing  for  injury  to  their  lines  if  the  subjacent  minerals  are 
subsequently  excavated  in  the  usual  and  proper  manner,  and 
«"  Atiie,  chaptex'  II.  p.  225. 


422  DISTURBANCE   OF  EASEMENTS. 

sinking  is  produced  by  the  removal  of  the  support.  It  is  ob- 
vious that  as  this  is  the  effect  of  statute,  that  result  is  pro- 
duced only  when  the  purchase  is  effected  under  the  above- 
mentioned  acts,  and  those  of  a  precisely  similar  character,  and 
that  in  cases  of  purchase  under  special  acts  of  parliament,  the 
right  to  support  and  to  sue  for  disturbance  depends  entirely 
upon  the  form  of  words  employed  in  the  act  under  which  the 
land  is  taken.  The  reason  for  the  peculiar  effect  of  the  Lands 
and  Railways  Clauses  Acts  above-mentioned  was  explained 
when  the  subject  was  previously  noticed,  and  the  cases  in 
which  this  principle  of  law  was  determined  were  given,  but 
it  may  be  observed  that  in  the  case  of  The  London  and  North 
Western  Railroad  Company  v.  Ackroyd,''  it  was  determined 
that  the  above-mentioned  effect  of  the  acts  is  not  confined 
solely  to  cases  of  purchase  of  land,  but  extends  also  to  the  case 
of  a  tunnel  made  under  land,  when  no  land  is  actually  pur- 
chased, but  a  mere  right  of  boring  though  the  soil  and  run- 
ning trains  under  the  ground. 

It  is  unnecessary  to  enter  at  any  length  into  the  consider- 
ation of  those  cases  which  have  arisen  under  private  and 
special  acts  of  parliament,  for  the  construction  put  upon  such 
acts  can  apply  only  to  those  particular  statutes,  and  any 
others  which  may  chance  to  contain  the  same  forms  of  words ; 
the  principles  enunciated  in  those  cases  cannot,  therefore,  be 
of  value  as  being  capable  of  general  application." 

WATER. 

The  wrongs  that   can  be  committed  against  persons  who 

possess  water-rights,  consist  (1)  of  diversion  of  the 

anceofwa-   water  of  streams  before  it  reaches  the  land  of  the 

tcr*riirlits»       •     • 

nijured  person  ;  (2)  obstruction  or  penning  back  of 

^  31  L.  J.  Ch.  588  (not  in  the  Reports). 

y  See  Regina  v.  Aire  and  Calder  Navigation  Co.  30  L.  J.  Q.  B.  337 
(not  in  the  Reports) ;  Stourbridge  Canal  Co.  v.  Earl  of  Dudley,  3  E.  &  E. 
409;  30  L.  J.  Q.  B.  108;  Dudley  Canal  Co.  v.  Grazebrook,  1  B.  &  Ad.  59; 
8  L.J.  K.  B.  361;  Midland  Railway  Co.  v.  Checkley,  L.  R.  4  Eq.  19; 
86  L.  J.  Ch.  380;  Metropolitan  Board  of  Works  v.  Metropolitan  Railway 
Co.  L.  R.  3  C.  P.  612;  37  L.  J.  C.  P.  281;  in  Exchequer  Chamber,  L.  R. 
4  C.  P.  192;  38  L.J.  C.  P.  172. 


WATER.  423 

the  water  of  streams  so  as  to  flood  the  land  past  which  the 
water  has  flowed ;  or  to  lessen  the  current  of  the  stream ; 
(3)  disturbance  of  the  steady  flow  and  regular  current  of 
water ;  (4)  disturbance  of  the  right  to  take  water,  either  of 
a  stream,  pool,  or  well,  for  use;  and,  lastly,  (5)  pollution  of 
water,  whether  flowing  or  standing,  and  whether  above  or 
under  ground. 

Some  doubt  has  existed  whether  an  action  will  lie  for  diver- 
sion or  obstruction  of  the  water  of  a  natural  stream    ^jj^^^^q 
at  the  suit  of  a  riparian  owner,  who  has  not  applied   necessary 

.         .,.  11*°  support 

the  water  to  any  purpose  of  utility,  and  who  con-  an  action 
sequently  cannot  prove  any  actual  damage  from  such  strucUng 
diversion  or  obstruction.  This  subject  has  already  i^^^^^'^^*^ 
been  noticed  at  the  commencement  of  this  chapter,  stream. 
when  it  was  pointed  out  that  no  action  on  the  case  will  lie 
unless  damage  has  been  sustained,  and  that  all  or  nearly  all 
actions  for  disturbance  of  easements  and  natural  rights  are 
necessarily  actions  on  the  case,  and  therefore  require  that  evi- 
dence of  damage  shall  be  produced ;  but  it  was  also  shown 
that  if  the  disturbance  is  any  injury  to  the  rights  that  alone  is 
sufiicient  damage  to  support  the  action.  Acts  causing  diver- 
sion or  obstruction  of  the  water  of  streams  are  generally  com- 
mitted, not  upon  the  soil  of  the  dominant  owner  so  as  to  con- 
stitute a  trespass,  but  upon  other  soil  higher  up  or  lower  down 
the  stream  than  his  land  ;  and  if  the  wrongful  act  was  actually 
committed  upon  his  soil,  it  is  clear  the  dominant  owner  would 
sue,  not  for  the  injury  to  his  easement  or  natural  right,  but 
for  the  trespass  on  his  land.  In  the  case  of  injury  by  pollu- 
tion of  the  water  of  a  stream,  it  is  questionable  whether  an 
action  will  not  lie  immediately  the  pollution  can  be  detected, 
although  no  actual  injury  is  caused,  for  the  very  fact  of  send- 
ing filthy  matter  with  water  on  the  land  of  another  person, 
is  a  trespass  on  his  land  as  much  as  if  heaps  of  cinders  were 
thrown  into  his  garden,  and  this  seems  to  have  been  the  opin- 
ion of  Sir  J.  Romilly,  M.  R.,  in  the  case  of  Goldsmid  v.  The 
Tunbridge  Wells  Improvement  Commissioners.^  In  the  case 
of  rights  to  support,  it  has  been  shown  that  an  action  will  not 
2  L.  R.  1  Eq.  at  p.  169;  35  L.  J.  Ch.  at  p.  93. 


424  DISTURBANCE   OF  EASEMENTS. 

lie  for  disturbance  till  actual  damage  has  arisen,  but  then  the 
nature  of  that  right  must  be  born  in  mind  ;  it  must  be  remem- 
bered that  the  right  is  not  a  right  to  any  particular  means  of 
support  but  that  the  enjoyment  of  land  shall  not  be  disturbed 
by  the  removal  of  support,  also  that  the  servient  owner  does 
no  unlawful  act  by  digging  in  his  own  soil  as  long  as  he  causes 
no  injury  to  his  neighbor,  and  that  he  can  acquire  no  fresh 
right  against  his  neighbor  by  so  digging,  nor  in  any  way 
abridge  his  neighbor's  rights.  In  the  case  of  diversion  or  ob- 
struction of  -the  water  of  streams,  however,  there  is  this  differ- 
ence :  if  the  stream  is  natural,  riparian  owners  have  a  natural 
right  that  the  water  shall  be  suffered  to  flow  continuously 
without  diminution  or  alteration,  and  any  act  of  obstruction 
or  diversion,  though  committed  off  the  riparian  owner's  land, 
would,  in  process  of  time,  if  unopposed,  establish  an  adverse 
easement  against  him  ;  and  his  natural  right  would  be  cur- 
tailed ;  and  similarly  if  the  stream  is  artificial,  acts  of  obstruc- 
tion or  diversion  of  the  water  would,  if  suffered  to  continue, 
form  evidence  in  opposition  to  any  easement  which  a  riparian 
owner  may  have  acquired,  and  thus  a  direct  injury  would  be 
inflicted  upon  him.  Notwithstanding,  therefore,  the  older  au- 
thorities in  which  a  contrary  opinion  appears  to  have  pre- 
vailed, it  seems  now  to  be  established  that  an  action  will  lie 
at  the  suit  of  a  riparian  proprietor  for  diversion  or  obstruc- 
tion of  the  water  of  a  natural  stream,  even  though  he  has  not 
been  in  the  habit  of  using  the  water,  and  has  sustained  no 
actual  damage,  because  such  diversion  or  obstruction  is  an  in- 
jury to  his  right.'* 

°  Sampson  v.  Hoddinott,  1  C.  B.  N.  S.  at  p.  611;  26  L.  J.  C.  P.  at  p. 
150;  Crossley  &  Sons  (Limited)  v.  Lightowler,  L.  E,.  3  Eq.  at  p.  296; 
L.  R.  2  Ch.  App.  at  p.  483;  Bickett  v.  Morris,  L.  R.  1  H.  L.  Sc.  47.  The 
contrary  doctrine  was  held  in  Wright  v.  Howard,  1  Sim.  &  St.  190;  1  L. 
J.  Ch.  94;  Mason  r.  Hill,  8  B.  &  Ad.  304;  1  L.  J.  N.  S.  K.  B.  107;  Wil- 
liams  V.  Morland,  2  B.  &  C.  910;  2  L.  J.  K.  B.  191.  In  Elwell  v.  Crow- 
ther  (31  Beav.  163;  31  L.  J.  Ch.  763),  the  Court  of  Chancery  restrained 
the  working  of  a  mine  under  a  stream  in  such  a  manner  as  to  interfere 
with  the  supply  of  water  to  a  mill,  although  no  damage  had  at  the  time 
resulted  from  the  sinking  of  the  ground. 


WATER.  425 


THE    AMERICAN   AUTHORITIES 

fully  sustain  the  proposition  that  any  unreasonable  diversion 
or  use  of  running  water  gives  a  riparian  proprietor  below  a 
right  of  action,  even  without  any  proof  of  prior  use,  or  of 
any  actual  damage  sustained  ;  and  on  the  plain  ground  that 
any  such  diversion  is  the  invasion  of  a  right,  which  if  con- 
tinued for  a  sufficient  length  of  time  may  ripen  into  an  ad- 
verse right,  and  thus  deprive  the  owner  below  of  some  future 
use  or  benefit  of  the  stream,  to  which  he  was  naturally  en- 
titled. 

Such  unreasonable  use  may  consist  in  the  amount  so  di- 
verted, or  in  the  time  and  manner  of  such  diversion  ;  the  ques- 
tion of  reasonableness  or  unreasonableness  being  for  the  jury 
in  each  particular  case;  and  possibly  the  relative  great  injury 
to  the  proprietor  below,  and  the  small  advantage  to  the  one 
above,  may  have  some  influence  in  given  cases  upon  that 
question. 

In  Newhall  v.  Ireson^  the  defendant  had  diverted  by  a  pipe 
a  large  portion  of  the  entire  volume  of  the  water  of  a  brook 
which  ran  through  the  plaintiff's  land  below,  and  conducted 
said  water  across  the  road  to  other  land  and  mills  of  the  de- 
fendant, from  which  it  was  discharged  into  the  salt  water  be- 
low the  plaintiff,  and  never  returned  to  the  stream.  This  was 
held  an  unreasonable  diversion,  and  an  encroachment  on  the 
plaintiff's  right,  giving  a  cause  of  action  for  nominal  damages, 
though  the  plaintiff  had  no  mill  on  the  stream,  and  did  not 
use  the  water  for  any  purpose. 

On  the  other  hand  any  reasonable  diversion  or  use  of  water 
does  not  give  a  cause  of  action,  even  if  actual  damage  has 
been  suffered ;  and  for  the  simple  reason  that  no  man  has  a 

1  8  Cush.  595.  See,  also,  Stowell  v.  Lincoln,  11  Gray,  434;  Butman  v. 
Hussey,  12  Me.  407;  Munroe  v.  Stickney,  48  Me.  462;  Woodman  v. 
Tufts,  9  N.  H.  88;  Tillotson  v.  Smith,  32  N.  H.  90;  Norway  Plains  Co. 
r.  Bradley,  52  N.  H.  86;  Branch  v.  Doane,  18  Conn.  233;  Crooker  v. 
Bragg,  lo'  Wend.  260 ;  Hulme  v.  Shreve,  3  H.  W.  Green,  116  ;  Pastorius  v. 
Fisher,  1  Rawle,  27;  Alexander  v.  Kerr,  2  Rawle,  83  ;  Plumpleigh  v.  Daw- 
son, 1  Gilman,  551. 


426  DISTURBANCE   OF   EASEMENTS. 

right  to  all  the  water  naturally  running  in  a  stream,  but  only 
to  the  residuum  left  after  the  reasonable  wants  of  upper  pro- 
prietors are  satisfied  ;  if,  therefore,  he  sustains  damage  by 
such  a  reasonable  diversion,  it  is  damnum  absque  injuria. 

A  fortiori.,  can  he  sustain  no  action  for  such  reasonable  di- 
version without  proof  of  actual  perceptible  damage  ?  ^ 

Diversion  of  a  stream  cannot  in  general  have  any  injurious 
Water  di-  effect  against  a  riparian  owner  whose  Land  is  situ- 
from  a  ated  lower  down  the  stream  than  the  point  of  diver- 
returned  ^^^^^  ^^  *^^®  water  is  reconducted  to  the  stream  before 
thereto.  it  reaches  his  land,  and  if  the  quantity  of  water  is 
not  sensibly  diminished  ;  under  such  circumstances,  there- 
fore, no  action  or  suit  can  be  maintained  by  the  riparian 
owner  for  the  diversion.*  In  Embrey  v.  Owen "  it  was  held 
that  no  action  can  be  maintained  by  a  riparian  proprietor  for 
diversion  of  water  for  the  purpose  of  irrigating  land  if  the 
water  is  returned  to  the  stream  before  reaching  the  plaintiff's 
land  with  no  other  diminution  in  quantity  than  that  neces- 
sarily caused  by  absorption  of  the  soil,  provided  the  amount 
consumed  is  not  unreasonable  so  as  to  exceed  the  natural 
right  of  every  riparian  owner  to  use  the  water  as  it  flows  past 
his  ground.  If,  however,  a  right  to  a  watercourse  is  granted 
by  deed,  and  the  channel  of  the  stream  through  the  grantor's 
land  is  specified  in  the  deed,  the  grantor  may  not  alter  the 
course  of  the  stream  in  his  own  land  even  though  the  water 
is  returned  to  its  original  course  before  it  reaches  the  land  of 
the  grantee,  and  though  the  grantee  sustains  no  damage  from 
the  alteration.'' 

^  Elliot  V.  Fitchburg  Railroad  Co.  10  Cush.  191.  This  case  has  some- 
times been  thought  to  be  in  conflict  with  that  of  Newhall  v.  Ireson,  in  the 
same  court,  in  8  Cush.  595,  and  perhaps  the  brief  marginal  note  of  the 
reporter  may  give  some  countenance  to  such  an  opinion ;  but  when  care- 
fully examined,  it  will  be  seen  that  the  decision  itself  turned  upon  the  fact 
that  under  the  particular  circumstances  the  diversion  was  not  unreason- 
able, and  so  no  cause  of  action  existed  either  with,  or  without,  proof  of 
damage. 

*  Elmhirst  v.  Spencer,  2  Mac.  &  G.  45. 

<=  6  Exch.  353 ;  20  L.  J.  Exch.  212. 

<i  Northam  v.  Hurley,  1  E.  &  B.  665;  22  L.  J.  Q.  B.  183;  Whitehead  v. 
Parks,  2  H.  &  N.  870;  27  L.  J.  Exch.  169. 


^  WATER.  427 

It  has  been  shown  that  it  is  not  the  character  of  an  ease- 
ment that  an  obligation  should  be  cast  on  the  servi-  Obliga- 
ent  owner  by  which  he  is  compelled  to  do  an  act,  keep  a 
but  that  an  easement  merely  obliges  him  not  to  do  fj.^^,^'^},-'^^^ 
something  on  his  own  land,  or  to  permit  something  struction. 
to  be  done  there  by  another  person  ;  nevertheless  an  obliga- 
tion may  be  lawfully  cast  upon  a  landowner  by  which  it  is 
rendered  compulsory  upon  him  to  do  something  for  the  ad- 
vantage of  another  person,  as  that  he  shall  repair  fences 
or  mend  a  road,  but  such  an  obligation  is  not  an  easement. 
Among  other  things,  there  may  be  an  obligation  cast  upon  a 
person  through  whose  land  a  watercourse  runs  that  he  shall 
cleanse  the  course  and  keep  it  free  from  obstruction  for  the 
benefit  of  a  lower  riparian  owner,  and  if  such  an  obligation 
exists  he  is  generally  responsible  for  injury  caused  by  every 
obstruction,  however  it  may  have  been  produced,  and  even 
though  he  removed  the  obstacle  as  soon  as  he  became  aware 
of  the  obstruction.* 

In  an  old  case-'' it  was  held  that  an  action  for  obstruction 
of  a  natural  stream  would  lie  at  the  suit  of  a  ripa-    Obstruc- 
rian  owner,  although  the  act  by  which  the  obstruc-   thTpoLes- 
tion  was  caused  was   committed  before  he  became   ^"'"  °^  \ 

person  who 

possessed  of  his  estate.  This  was  decided  on  the  sues. 
ground  that  it  is  not  material  when  the  nuisance  was  erected, 
for  he  that  is  hurt  by  it  shall  have  an  action.  The  case,  how- 
ever, might  have  been  decided  on  another  ground,  namely, 
that  a  natural  right  appurtenant  to  the  land  was  injured,  and 
that  the  action  would  lie  at  the  suit  of  any  owner  of  the  land, 
and,  consequently,,  of  that  right,  at  any  time  until  a  right  to 
obstruct  the  water  had  been  acquired  by  prescription. 

As  a  general  rule  an  action  will  lie  against  a  person  who 
continues  a  nuisance  as  well  as  against  one  who  ere-   Eight  of 
ates  it,  provided  he  has  power  to  prevent  its  contin-   continuing 
nance.     In  the  case  of   Saxby  v.  The  Manchester,   g^'^^gj^^jj 
Sheffield  and  Lincolnshire  Railway  Company,"  it  was   of  a  stream. 

«  Bell  V.  Twentyman,  1  Q.  B.  766. 

/  Westbourne  v.  Mordant,  Cro.  Eliz.  191. 

i>L.R.i  C.  P.  198;  38  L.  J.  C.  P.  153. 


428  DISTURBANCE   OF  EASEMENTS. 

held,  however,  that  under  the  circumstances  of  the  case  the 
action  would  not  lie  against  the  defendants  for  continuing  a 
nuisance  which  consisted  of  a  weir  erected  in  a  stream,  the  soil 
of  which  belonged  to  the  defendants,  by  means  of  which  the 
water  was  obstructed  from  flowing  to  the  plaintiff's  print- 
works. The  evidence  showed  that  the  soil  of  the  stream  be- 
longed to  the  defendants,  and  that  the  weir  was  built  before 
they  became  possessed  of  it,  that  they  did  not  desire  its  con- 
tinuance but  refused  to  remove  it,  although  they  gave  per- 
mission to  the  plaintiff  to  remove  it  if  he  pleased.  It  was 
argued  that  the  railway  company  were  responsible  for  con- 
tinuing the  obstruction,  but  it  was  decided  otherwise,  for  that 
the  act  complained  of  was  not  an  act  done  by  the  defendants 
or  by  any  one  authorized  by  them,  nor  was  it  an  act  done  for 
their  benefit  or  adopted  by  them.  It  was  also  said  that  they 
were  not  bound  to  risk  the  consequences  of  removing  the  weir, 
which  might  be  serious,  as  they  might  involve  a  conflict  with 
the  persons  who  erected  it,  and  the  plaintiff  could  not  shift  the 
responsibility  on  to  the  defendants  as  they,  the  defendants, 
having  assented,  might  have  removed  the  weir  themselves. 

IN   AMERICA, 

the  doctrine  is  familiar  that  every  continuance  of  a  nuisance 
is  a  new  nuisance,  and  another  action  lies  for  every  day''s  con- 
tinuance.^ •  And  if  the  author  of  the  nuisance  leases  or  con- 
veys the  land  or  dam  which  creates  the  nuisance,  he  still  re- 
mains liable  for  any  damage  caused  by  the  same  state  of  facts 
existing  when  he  conveyed.^ 

In  such  cases  an  action  will  lie,  either  against  the  author  of 
the  nuisance,  or  against  him  who  knowingly  continues  it  on 
his  land  after  his  purchase  thereof  ;  but  if  the  latter  does  no 
act  himself  to  continue  the  nuisance,  a  notice  or  request  to 
remove  it  is  necessary  in  order  to  make  him  liable.^ 

1  See  Staple  v.  Spring,  10  Mass.  74 ;  Hodges  v.  Hodges,  5  Met.  205. 

2  Waggoner  v.  Jermaine,  3  Denio,  306;  Curtice  v.  Thompson,  19  N.  H. 
471;  Eastman  v.  Amoskeag  Man.  Co.  44  N.  H.  156. 

8  See  Woodman  v.  Tufts,  9  N.  H.  88  ;  Pillsbury  v.  Moore,  44  Me.  157; 
Branch  u.  Doane,  17  Conn.  418;  Johnson  v.  Lewis,  13  Conn.  303;  Noyes 


WATER.  429 

As  the  law  will  sanction  the  abatement  of  a  building  which 
wrongfully  obstructs  light,  so  it  will  permit  a  person  Right  to 
who  is  injured  by  the  obstruction  of  a  watercourse  gl'ru'ction" 
to  enter  his  neighbor's  land  and  remove  the  obstruc-  ^^  streams, 
tion.i  It  is  not,  however,  desirable  that  this  remedy  should 
be  pursued  for  the  same  reasons  that  were  given  when  the 
right  to  abate  obstructions  to  light  were  considered,  and  the 
law  does  not  favor  this  mode  of  obtaining  redress  for  private 
injuries.  Nevertheless,  though  this  remedy  may  be  pursued, 
Lord  Holt  says  that  an  obstruction  in  a  river  may  not  be 
abated  until  it  has  actually  become  a  nuisance,^  and  that  a 
riparian  owner  is  not  justified  in  entering  his  neighbors  land 
and  removing  an  obstruction  in  a  stream  merely  because  he 
anticipates  injury  which,  in  fact,  may  never  occur.'' 

Disturbance  of  the  steady  flow  and  regular  current  of  the 
water  of  a  natural  stream  is  an  injury  for  which  a   Djgturb- 
riparian  owner  may  sue,  although  the  quantity  of   ance  of  the 
water  is  not  diminished,  for  his  natural  right  is  that   flow  of  a 
the  water  shall  be  suffered  to  flow  in  its  usual  and   ^  ^^  '^' 
accustomed  manner,  and  in  its  ordinary  course.     A  declara- 
tion, therefore,  which  charged  a  defendant  with  damming  up 

V.  Stillman,  24  Conn.  15;  Howe  Scale  Co.  v.  Terry,  47  Vt.  109  ;  Pierson 
V.  Glean,  2  Green,  36 ;  Carleton  v.  Redington,  21  N.  H.  291.  See,  how- 
ever, that  notice  is  not  necessary,  Brown  v.  Cayuga  and  Susq.  R.  R.  Co. 
2  Kern.  492. 

^  See  Hodges  v.  Raymond,  9  Mass.  316;  Colburn  v.  Richards,  13  Mass. 
420;  Prescott  v.  White,  21  Pick.  341  ;  Prescott  v.  Williams,  5  Met.  429; 
Heath  v.  Williams,  25  Me.  209  ;  Brown  v.  Chadbourne,  31  Me.  26  ;  Gro- 
ton  V.  Haines,  36  N.  H.  388  ;  Gleason  v.  Gary,  4  Conn.  418  ;  Dimmet  v. 
Eskridge,  6  Munf.  308  ;  Amoskeag  Man.  Co.  v.  Goodale,  46  N.  H.  56. 
The  abatement  should  be  made  so  as  to  do  the  least  practicable  injury  to 
the  other  party.  Veazie  v.  Dwinel,  50  Me.  496 ;  Moifett  v.  Brewer,  1 
Iowa,  348;  Gates  v.  Blincoe,  2  Dana,  158;  White  v.  Chapin,  12  Allen, 
522.  Therefore  if  a  mill-owner  has  a  right  to  maintain  a  dam  at  a  certain 
height,  and  unlawfully  raises  it  above  that  height,  a  person  whose  land  is 
overflowed  may  abate  the  excess,  but  has  no  right  to  entirely  demolish 
the  dam.  Dyer  v.  Depui,  5  Whart.  584.  And  see  Great  Falls  Co.  v. 
Worster,  15  N.  H.  439;  Wright  v.  Moore,  38  Ala.  593. 

2  But  see  Amoskeag  Man.  Co.  v.  Gooodale,  46  N.  H.  56. 

»  Rex  V.  Wharton,  Holt,  499. 


430  DISTURBANCE   OF  EASEMENTS. 

and  diverting  tlie  water  of  a  stream  and  preventing  it  from 
running  in  its  accustomed  channel  to  the  plaintiff's  mill,  and 
likewise  with  damming  up  and  diverting  the  water  and  pi'e- 
venting  it  from  flowing  in  sufficient  quantities  as  it  had  been 
used  to  flow,  was  supported  by  evidence  that  the  defendant 
had  erected  a  dam  by  which  the  water  was  diverted  from  its 
usual  course,  though  it  was  returned  to  its  accustomed  course 
before  reaching  the  plaintiff's  mill,  and  that  the  effect  of  the 
diversion  was  occasionally  to  delay  the  plaintiff  in  working 
his  mill  by  the  detention  of  the  water.'  In  the'case  of  Rob- 
inson V.  Lord  Byron,''  the  Court  of  Chancery  granted  an  in- 
junction, that  remedy  being  asked  to  restrain  Lord  Byron 
from  preventing  water  flowing  to  a  mill,  or  letting  a  greater 
quantity  of  water  than  usual  flow  down  to  the  mill.  It  ap- 
peared in  that  case  that  since  the  4th  April,  1785,  Lord 
Byron,  who  had  large  pieces  of  water  in  his  park  supplied 
by  the  stream  which  flowed  to  the  mill,  had  at  one  time 
stopped  the  water  and  at  another  time  let  in  the  water  in 
such  quantities  as  to  endanger  the  safety  of  the  mill,  and  the 
lord  chancellor  therefore  granted  an  injunction  to  restrain  the 
defendant  from  using  dams  and  other  erections,  "  so  as  to 
prevent  the  water  flowing  to  the  mill  in  such  regular  quanti- 
ties as  it  had  ordinarily  done  before  the  4th  of  April,"  but 
he  declared  at  the  same  time  that  the  court  would  not  restrain 
any  mode  of  user  which  had  been  enjoyed  for  twenty  years. 
The  same  principle  was  followed  also  in  the  Scotch  case  of 
Bickett  V.  Morris.*  The  appellant  and  respondent  owned 
property  on  the  opposite  banks  of  a  river.  The  appellant 
wished  to  build  a  certain  distance  on  to  the  bed  of  the  stream 
and  the  respondent  consented,  but  he  began  to  build  in  a  man- 
ner not  agreed  to  by  the  respondent,  who  took  proceedings 
against  him  in  the  Court  of  Session  to  have  it  declared  that 
the  appellant  had  no  right  to  erect  buildings  on  the  solum  of 
the  river  beyond  the  line  agreed  upon.     The  court  decided 

♦■  Shears  v.  Wood,  7  Moore,  345;  1  L.  J.  C.  P.  3  ;  Williams  v.  Morland, 
2  B.  &  C.  910;  2  L.  J.  K.  B.  191. 
■»■  1  Bro.  C.  C.  588. 
*  L.  R.  1  Sc.  App.  47. 


WATER.  431 

that  a  riparian  proprietor  is  not  entitled  to  erect  a  building  or 
make  any  changes  in  the  alveus  of  a  stream  without  the  con- 
sent of  the  opposite  proprietor,  for  if  he  does  so,  although  the 
opposite  proprietor  may  be  unable  to  prove  that  any  damage 
has  actually  happened  to  him  by  the  erection,  yet,  if  the  en- 
croachment is  not  of  a  slight  and  trivial  but  of  a  substantial 
description,  the  alteration  must  always  involve  some  risk  of 
injury.  Lord  Benholme  said  :  "  Without  my  consent  (z.  e., 
the  consent  of  the  proprietor  of  the  other  side  of  the  river) 
you  are  not  to  put  up  your  building  in  the  channel  of  the 
river,  for  that,  in  some  degree,  must  affect  the  natural  flow 
of  the  water.  What  may  be  the  result  no  human  being  with 
certainty  knqjvs,  but  it  is  my  right  to  prevent  your  doing  it, 
and  when  you  do  it,  you  do  me  an  injury,  whether  I  can  qual- 
ify damage  or  not."  Lord  Neaves  said  :  "  Neither  can  any  of 
the  proprietors  occupy  the  alveus  with  solid  erections  without 
the  consent  of  the  other,  because  he  thereby  affects  the  course 
of  the  whole  stream.  The  idea  of  compelling  a  party  to  de- 
fine how  it  will  operate  upon  him,  or  what  damage  or  injury 
it  will  produce,  is  out  of  the  question."  Lord  Chelmsford,  C, 
on  the  appeal  to  the  House  of  Lords,  after  citing  these  pas- 
sages, said  :  "  These  views  appear  to  me  to  be  perfectly  sound 
in  principle  and  to  be  supported  by  authority.  The  proprie- 
tors upon  the  opposite  banks  of  a  river  have  a  common  inter- 
est in  the  stream,  and  although  each  has  a  property  in  the 
alveus  from  his  own  side  to  the  medium  jilum  fiuminis^  neither 
is  entitled  to  use  the  alveus  in  such  a  manner  as  to  interfere 
with  the  natural  flow  of  the  water.  My  noble  and  learned 
friend,  the  late  lord  chancellor,  during  the  argument  put  this 
question :  '  If  a  riparian  proprietor  has  a  right  to  build  upon 
a  stream,  how  far  can  this  right  be  supposed  to  extend  ?  Cer- 
tainly (he  added)  not  ad  medium  filum,  for  if  so,  the  opposite 
proprietor  must  have  a  legal  right  to  build  to  the  same  extent 
from  his  side.'  It  seems  to  me  to  be  clear  that  neither  pro- 
prietor can  have  any  right  to  abridge  the  width  of  the  stream, 
or  to  interfere  with  its  regular  course  ;  but  anything  done  in 
alveo  which  produces  no  sensible  effect  upon  the  stream  is  al- 
lowable."    Lords  Cranworth  and  Westbury  expressed  simi- 


432  DISTURBANCE   OF   EASEJIENTS. 

lar  views,  and  the  appeal  was  dismissed.  But  in  America 
this  doctrine  has  been  expressly  denied,  unless  the  erection  of 
such  building  actually  causes  practical  damage  to  the  other 
party,  or  must  naturally  do  so.^  Though  this  is  the  general 
law  as  to  the  right  of  action  for  disturbing  the  steady  and 
regular  flow  of  a  stream,  no  action  can  be  maintained  against 
an  owner  of  land  adjoining  the  sea  who  erected  groynes  for 
the  protection  of  his  land  from  the  force  of  the  waves,  and  has 
thereby  caused  the  water  to  flow  with  increased  violence  on 
to  the  land  of  another  person  ;  for  it  is  said,  the  sea  is  a  com- 
mon enemy,  against  which  every  pei'son  has  a  right  to  protect 
his  own  land  regardless  of  his  neighbors,  who  in  their  turn 
must  adopt  any  precautions  which  seem  to  them  desirable  for 
the  same  purpose  ;  ^  but  though  this  rule  has  been  laid  down 
in  the  case  of  the  sea,  it  has  not  been  allowed  in  the  case  of 
tidal  rivers.'™ 

A  right  to  take  water  either  from  a  stream  or  from  a  pool 
Disturb-  ^^  'Well  for  use  or  consumption,  may  be  disturbed 
ance  of  the  either  by  the  destruction  of  the  supply  or  by  pollu- 
take  water    tiou  of  the  water,  and  generally  any  person  who  has 

for  11S6  • 

a  right  so  to  take  water  and  is  disturbed  in  either  of 
those  ways,  has  a  remedy  by  an  action  either  for  damages  or 
an  injiinction  for  the  wrong  he  has  sustained  ;  he  cannot  usu- 
ally maintain  an  action  for  disturbance  of  a  trifling  character 
or  for  disturbance  which  is  merely  temporary,"  but  if  the  dis- 
turbance is  calculated  in  any  way  to  call  his  right  in  question, 
it  matters  not  how  trifling  or  temporary  the  disturbance  is,  he 

1  See  the  interesting  case  of  Norway  Plains  Co.  v.  Bradley,  52  N.  H. 
108,  and  tbe  able  opinion  of  Judge  Foster. 

'  Rex  V.  Pagham  Commissioners,  8  B.  &  C.  355 ;  6  L.  J.  K.  B.  338. 

•«  Attorney  General  v.  Earl  of  Lonsdale,  L.  R.  7  Eq.  37  7  ;  38  L.  J.  Ch. 
335. 

"  Taylor  v.  Bennett,  7  C.  &  P,  329  ;  Goldsmid  v.  Tunbridge  Wells 
Improvement  Commissioners,  per  Sir  G.  J.  Turner,  L.  J.,  L.  R.  1  Cb.  App. 
at  pp.  354,  355.  It  bas  been  sbown  tbat  tbere  is  no  natural  rigbt,  and  tbat 
no  rigbt  can  be  acquired  by  prescription  to  tbe  uninterrupted  flow  of  un- 
derground water,  wbicb  percolates  tbrougb  tbe  soil  in  unknown  channels; 
no  action  will  therefore  lie  for  destruction  of  a  supply  of  water  to  a  well 
60  obtained. 


WATER.  433 

■will  be  entitled  to  sue.  If  the  right  to  take  water  is  of  a 
public  character  and  is  not  a  private  easement,  an  action  will 
not  lie  unless  the  plaintiff  has  sustained  some  special  and  pe- 
culiar damage  from  the  disturbance  which  is  not  shared  by- 
other  people,  just  as  an  action  will  not  lie  for  obstruction  of  a 
highway  in  the  absence  of  special  and  peculiar  injury.  In  the 
case  of  Rex  v.  The  Bristol  Dock  Company,"  therefore,  it  was 
held  that  an  inhabitant  of  a  town  who  had  been  in  the  habit 
of  taking  water  from  a  river,  but  without  any  other  right 
than  that  which  was  common  to  all  other  inhabitants  of  the 
town  and  of  the  public  generally,  could  not  maintain  an  ac- 
tion for  pollution  of  the  water,  for  the  wrong  was  public  and 
the  remedy  was  by  indictment.  But  in  Harrop  v.  Hirst ^  it 
was  held  that  an  action  would  lie  for  disturbance  of  a  right  to 
take  for  use  at  the  suit  of  one  of  a  particular  class  of  persons 
who  had  a  customary  right  to  take  water  from  a  stream  for 
use  in  their  houses,  for  an  indictment  would  not  lie  against 
the  disturber,  and  there  was  no  other  remedy.  In  that  case 
it  was  in  evidence  that  the  inhabitants  of  the  district  of 
Tamewater  possessed  a  customary  right  to  take  water  for  use 
in  their  houses  as  it  flowed  from  a  spout  in  a  public  highway, 
and  that  the  defendant,  who  was  owner  of  the  watercourse 
through  which  the  water  flowed  to  the  spout,  had  abstracted 
the  water  before  it  reached  the  spout  in  such  quantities  as  to 
render  what  remained  insufficient  for  the  exigencies  of  the 
inhabitants.  It  was  held  that  the  plaintiff,  who  was  one  of 
the  inhabitants,  could  maintain  his  action,  although  no  actual 
personal  and  particular  damage  was  proved  to  have  been 
sustained  by  him.  It  was  so  decided  on  the  authority  of 
Westbury  v.  Powel,  which  is  cited  in  the  case  of  Fineux  v. 
Hovenden,^  where  it  was  determined  that  the  inhabitants  of 
Southwark,  having  had  a  common  watering-place,  and  the  de- 
fendant having  stopped  it,  the  plaintiff,  who  was  one  of  the 
inhabitants,  might  bring  an  action  on  the  case,  as  there  was  no 
other  remedy. 

o  12  East,  428. 

*  L.  R.  4  Exch.  43;  38  L.  J.  Exch.  1. 
a  Cro.  Eliz.  664. 
28 


434  DISTURBANCE   OF   EASEMENTS. 

Pollution  of  water  may  produce  injury  in  various  ways  to 
Right  of  those  persons  who  have  a  right  that  the  water  shall 
poliudJn'^  be  suffered  to  remain  pure.  If  the  right  is  to  use 
of  water.  water  for  the  purpose  of  drinking  or  of  watering 
cattle,  pollution  may  render  the  water  unfit  for  those  pur- 
poses ;  if  the  right  is  to  take  water  for  the  purpose  of  supply- 
ing boilers  of  engines,  pollution  may  produce  corrosion  of  the 
metal  and  destruction  to  the  machine  ;  and  if  the  water  is  not 
applied  to  any  particular  purpose  of  utility,  yet  great  injury 
may  be  produced  by  pollution  to  the  riparian  proprietors  by 
destruction  of  fish,  or  by  putrefying  the  air  in  the  neighbor- 
hood of  the  stream  with  noxious  smells.  In  all  these  and 
similar  cases  the  law  affords  a  remedy  by  action  for  damages 
or  for  an  injunction,  unless  the  party  causing  the  pollution  is 
justified  in  so  doing  by  virtue  of  an  easement  or  acquired 
right  to  foul  the  water.  It  was  said  in  Aldred's  case ''that 
"  if  a  man  has  a  watercourse  running  in  a  ditch  from  the  river 
to  his  house  for  his  necessary  use,  if  a  glover  sets  up  a  lime- 
pit  for  calf-skins  and  sheep-skins  so  near  the  said  watercoui-se 
that  the  corruption  of  the  lime-pit  has  corrupted  it,  for  which 
cause  his  tenants  leave  the  said  house,  an  action  on  the  case 
lies  for  it,  as  it  is  adjudged  in  13  H.  7,  26  b,  and  this  stands 
with  the  rule  of  law  and  reason,  so.  Prohihetur  ne  quis  faciat 
in  suo  quod  nocere  possit  alieno :  Et  sic  utere  tuo  ut  alienum 
non  Icedas.  Vide  in  the  Book  of  Entries,  Tit.  Nusance, 
406,  b,  he  who  has  a  several  Piscary  in  a  water  shall  have  an 
action  on  the  case  against  him  who  erects  a  dyehouse  ac  fimos 
fosditates,  et  alia  sordida  extra  domum  prced'  decurrentia  in 
piscariam  prced^  decurrere  fecit^  -per  quod  idem  profieuum  pis- 
caricB  suce  p)faid'  totaliter  amisit,  ^c."  So,  also,  it  was  said  by 
Sir  J.  Romilly,  M.  R.,  in  the  case  of  Goldsmid  v.  The  Tun- 
bridge  Wells  Improvement  Commissioners,*  "  My  opinion  is, 
that  any  person  who  has  a  watercourse  flowing  through  his 
land,  and  sewage  which  is  perceptible  is  brought  into  that 
course,  has  a  right  to  come  here  to  stop  it."  But  it  was  also 
said  by  Lord  Justice  Turner,  in  the  same  case  on  appeal,  "  I 

'-  9  Coke,  58. 

'  L.  R.  1  Eq.  at  p.  169 ;  35  L.  J.  Ch.  at  p.  93, 


WATER.  435 

adhere  to  the  opinion  which  was  expressed  by  me  and  by  the 
lord  chancellor  in  the  Attorney  General  v.  Sheflfield  Gas  Con- 
sumers' Company/  that  it  is  not  in  every  case  of  nuisance  that 
this  court  should  interfere.  I  think  that  it  ought  not  to  do  so 
in  cases  in  which  the  injury  is  merely  temporary  and  trifling  ; 
but  I  think  that  it  ought  to  do  so  in  cases  in  which  the  injury 
is  permanent  and  serious :  and  in  determining  whether  the 
injury  is  serious  or  not,  regard  must  be  had  to  all  the  conse- 
quences which  may  flow  from  it." 

It  has  been  shown  that  the  fact  that  the  air  is  polluted  by 
other  persons  by  similar  or  different  means  does  not   Previous 
justify  a  man  in  increasing  that  pollution  ;  the  case   no'justm- 
is  the  same  with  water,  for  the  fact  that  other  causes   ^'^^'o"  ^°^ 

1  11       ■  p  loiiling 

contribute  to  the  pollution  of  a  stream  does  not  jus-  water, 
tify  a  riparian  owner  or  any  other  person  in  adding  to  the  im- 
purity of  the  water.  This  was  particularly  noticed  by  Lord 
Chelmsford,  C,  in  the  case  of  Crossley  &  Sons  (Limited)  v. 
Liglitowler,"  in  which  he  remarked  that  where  there  are  many 
existing  nuisances,  either  to  the  air  or  water,  it  may  be  very 
difficult  to  trace  to  its  source  the  injury  occasioned  by  any 
one  of  them  ;  but  if  the  defendants  in  that  suit  were  to  add 
to  the  former  foul  state  of  the  water,  and  yet  were  not  to  be 
responsible  on  account  of  its  previous  condition,  this  conse- 
quence would  follow,  that  if  the  plaintiffs  were  to  make  terms 
with  the  other  pollutors  of  the  stream,  so  as  to  have  the  water  • 
free  from  impurities  produced  by  their  works,  the  defendants 
might  say,  "  We  began  to  foul  the  stream  at  a  time  when  as 
against  you  it  was  lawful  for  us  to  do  so,  inasmuch  as  it  was 
unfit  for*  your  use,  and  you  cannot  now  by  getting  rid  of  the 
existing  pollutions  from  other  sources  prevent  our  continuing 
to  do  what  at  the  time  when  we  began  you  had  no  right  to 
object  to." 

Pollution  of  streams  like  pollution  of  air  is  frequently 
caused  by  the  exercise  of  lawful  trades,  in  the  course  of  which 

'  L.  R.  1  Ch.  App.  at  p.  354;  35  L.  J.  Ch.  at  p.  384;  Attorney  General 
V.  Gee,  L.  R.  10  Eq.  131. 

«  L.  R.  2  Ch.  App.  478  ;  36  L.  J.  Ch.  584;  Wood  v.  Waud,  3  Exch.  748; 
18  L.  J.  Exch.  305. 


436  DISTURBANCE   OF  EASEMENTS. 

it  becomes  necessary  to  dispose  of  refuse  matter  and  other 
Pollution  filth  which  is  produced  in  manufacturing  processes  ; 
by^carry'^'"  and  in  the  erection  of  manufactories,  nothing  is  more 
ing  on         common  than  to  make  the  waste  pipes  and  sewers 

trade  not  ^  _  ^  ^ 

justifiable,  which  are  intended  to  convey  this  filth  from  the 
factory  lead  into  some  stream  that  the  matter  may  by  that 
means  be  washed  away  ;  from  the  adoption  of  that  practice 
the  question  has  arisen,  whether  the  facts  that  a  trade  is  law- 
ful, and  that  it  is  carried  on  for  purposes  necessary  or  useful 
to  the  community,  and  in  a  reasonable  and  proper  manner, 
and  in  a  proper  place,  will  justify  the  pollution  of  a  stream  to 
the  detriment  of  riparian  owners.  It  has  been  explained  that 
the  above  facts  will  not  justify  the  pollution  of  air,  so  neither 
will  they  justify  pollution  of  water." 

It  is  very  difficult,  and  perhaps  impossible,  to  lay  down  any 
When  the  general  rule  as  to  the  cases  in  which  the  court  will 
court  will     interfere  by  injunction  to  restrain  pollution  of  water. 

restrain  .  »        .    .  ,  .  . 

pollution  An  expression  of  opinion  on  this  point,  by  the  mas- 
ter of  the  rolls  and  the  Lord  Justice  Turner,  in  the 
case  of  Goldsmid  v.  The  Tunbridge  Wells  Improvement  Com- 
missioners, has  already  been  noticed,  and  the  subject  has  been 
referred  to  in  several  parts  of  this  work.  Besides  the  expres- 
sions of  opinion  already  referred  to,  the  Vice  Chancellor  Wood 
is  reported  to  have  said  :  "  I  desire  to  add  that  whilst  I  do 
not  wish  to  encourage  application  to  the  court  upon  trivial 
matters,  on  the  other  hand,  I  am  far  from  holding  out  the  no- 
tion that  anything  like  large  or  heavy  damages  must  be  re- 
covered before  the  plaintiff  can  be  assisted."  "  The  fullest 
explanation,  however,  of  the  conditions  that  are  essential  to 
induce  the  Court  of  Chancery  to  interfere  by  injunction  to 
restrain  pollution  of  water,  occurs  in  the  judgment  of  Kin- 

"  Stockport  Waterworks  Co.  v.  Potter,  7  H.  &  N.  160;  31  L.  J.  Exch. 
9;  Merrifield  v.  Lombard,  13  Allen,  16;  Carlisle  v.  Cooper,  21  N.  J.  Eq. 
576;  Holsman  v.  Boiling  Spring  Bleaching  Co.  14  N.  J.  Eq.  335;  Lewis 
V.  Stein,  16  Ala.  214. 

»*  Lingwood  v.  Stowmarket  Co.  L.  R.  1  Eq.  77.  See,  also,  Clowes  v. 
The  Staffordshire  Potteries  Waterworks  Co.  L.  R.  8  Ch.  App.  pp.  142, 
143  ;  42  L.J.  Ch.  pp.  112,  113. 


WATER.  437 

dersley,  V.  C,  in  the  case  of  Wood  v.  Sutcliffe,  which  has  al- 
ready been  quoted  at  length,  and  will  be  found  in  the  earlier 
part  of  this  chapter.^ 

Pollution  of  water  frequently  arises  from  the  formation  of 
sewers,  for  the  purpose  of  draining  towns,  and  the    p^g^raint 
pouring  of  sewage  by  that  means  into  streams  ;  and   of  drainage 

^  ^  o         J  'of  towns  if 

sewers  for  that  purpose  are  commonly  made  under  streams  are 
the  authority  of  acts  of  parliament.  It  is  most  de- 
sirable, and  indeed  necessary  for  the  public  health,  that  towns 
shall  be  properly  drained,  and  it  is  obvious  that  the  public 
good  must  in  many  cases  be  brought  into  antagonism  with 
private  rights  ;  when  that  event  happens  questions  arise  as 
to  the  interest  which  is  to  prevail.  This  subject  has  been 
discussed  in  various  reported  cases.  In  Lillywhite  v.  Trim- 
mer,^ which  was  a  case  of  this  kind,  Malins,  V.  C,  said,  that 
on  the  one  side  he  took  it  that  the  doctrines  of  the  Court  of 
Chancery  were  pretty  well  settled ;  that  however  desirable 
public  improvements  might  be,  if  you  cannot  effect  them 
without  interfering  with  private  rights,  private  rights  must 
prevail,  and  that  those  who  desire  public  improvements  must 
effect  them  as  best  they  can,  without  interfering  with  those 
private  rights ;  he  added  that  that  was  the  principle  acted 
upon  by  Vice  Chancellor  Wood  in  the  Birmingham  case,^  and 
it  had  been  acted  upon  by  the  same  learned  and  distinguished 
judge  in  many  other  cases,  that  he  had  been  followed  by  the 
master  of  the  rolls,  and  more  recently  by  the  lords  justices  ;  he 
therefore  considered  it  a  settled  point.  On  the  other  hand,  he 
continued,  if  there  is  an  important  object  to  be  effected,  such 
as  the  drainage  of  a  town,  than  which  nothing  can  be  more 
important,  he  could  not  help  thinking  that  such  great  and  im- 
portant public  objects  are  not  wholly  to  be  overlooked.  From 
this  and  the  other  decisions  it  appears  now  to  be  settled  that 

==  Ante,  p.  364. 

y  36  L.  J,  Ch.  525  (not  in  the  Reports)  ;  Attorney  General  v.  Gee,  L.  R. 
10  Eq.  131  ;  Attorney  General  v.  Leeds  Corporation,  L.  R.  5  Ch.  583;  39 
L.  J.  Ch.  711. 

'  Attorney  General  v.  The  Council  of  the  Borough  of  Birmingham,  4 
K.  &  J.  528. 


488  DISTURBANCE   OF   EASEMENTS. 

the  High  Court  of  Justice  will  restrain  the  pollution  of  a 
stream,  by  the  drainage  of  a  town,  however  desirable  such 
drainage  may  be,  if  a  riparian  proprietor  sustains  material  in- 
jury from  pollution  of  a  stream ;  but  the  court  will  have  re- 
gard to  the  balance  of  inconvenience,  and  if  the  injury  sus- 
tained is  trifling  and  can  be  fairly  compensated  by  a  money 
payment,  and  if  the  drainage  is  of  great  importance,  the  court 
will  refuse  to  interfere  by  injunction. 

IN    AMERICA, 

this  subject  has  been  frequently  considered,  and  it  has  been 
generally  agreed  that  although  a  town  or  city  may  be  author- 
ized by  statute  to  lay  out  and  construct  sewers  through  any 
public  streets  or  private  lands,  and  emptying  into  tide-waters, 
this  does  not  justify  the  city  in  discharging  mud  and  filth 
through  such  sewers  into  a  private  dock,  in  such  quantities  as 
to  fill  it  up  and  obstruct  it,  or  make  it  offensive ;  and  if  the 
city  does  so,  it  is  liable  to  the  private  party  in  an  action  for 
damages,  and  may  also  be  restrained  by  injunction  from  contin- 
uing such  nuisance.^  If,  however,  the  statute  authorizing  the 
laying  of  public  sewers  also  provides  a  special  mode  of  ascer- 
taining and  awarding  the  damage  thereby  caused  private  par- 
ties, an  action  at  law  or  bill  in  equity  will  not  lie  for  any  in- 
jury which  is  the  necessary  result  of  the  exercise  of  the  powers 
conferred  by  the  statute,  but  only  the  special  remedy  provided 
by  the  law  for  such  private  injuries ;  but  for  any  damages 
resulting  from  any  improper  use  of  the  exercise,  any  excess  of 
power,  or  negligence  in  building  or  taking  care  of  the  sewer 
when  completed,  a  private  action  will  lie,  if  the  damage  be 
special  to  the  plaintiff,  or  an  indictment  if  it  be  a  public  nui- 
sance.2 

The  court  will  interfere  by  injunction  at  the  suit  of  a  ripa- 
Riparian  rian  Owner  who  is  injured  by  pollution  of  a  stream 
must  prove  ^nly  in  case  he  is  injured  in  his  character  of  riparian 
thatYh'a'r-  owner ;  for  otherwise  he  has  no  more  right  to  its  aid 
acter.  than  any  other  individual.      Thus,  in  the  case  of 

1  See  Haskell  v.  New  Bedford,  108  Mass.  208. 

2  See  Washburn  &  Moen  Man.  Co.  v.  Worcester,  116  Mass.  458;  Merri- 
field  V.  Worcester,  110  Mass.  216;  Brayton  v.  Fall  River,  113  Mass.  218. 


WATER.  439 

Crossley  &  Sons  (Limited)  v.  Lightowler,"  it  appeared  that 
the  plaintiffs,  who  appHed  to  the  court  in  their  character  of 
riparian  owners  for  an  injunction  to  restrain  pollution  of  a 
stream,  did  not  actually  use  the  water  of  the  stream  as  it 
flowed  past  their  land,  but  artificially  obtained  a  supply  of 
water  from  the  same  stream  at  a  point  considerably  higher  up 
than  their  land,  by  means  of  a  pipe  running  for  some  distance 
underground,  and  that  the  pollution  complained  of  was  not 
directly  opposite  their  land  and  factory,  but  at  the  point 
where  the  underground  pipe  passed  into  and  received  water 
from  the  stream.  The  court  refused  an  injunction  so  claimed 
on  the  ground  that  the  injury  was  clearly  not  an  injury  to  the 
rights  of  the  plaintiffs  as  riparian  proprietors. 

Pollution  of  water  is  an  injury  of   a  very  different  kind 
from  diversion  or  obstruction   of   streams,  and   al-   Pollution 
though  no  legal  injury  is  done,  and  no  action  will   gj-oun^^"^' 
lie   for    obstruction    or    diversion   of    underground   water. 
streams  of  water,  which  are  unknown  or  undenned,  pollution 
of  such  water  to  the  detriment  of  another  person  is  a  legal 
wrong  for  which  the  court  will  afford  a  remedy.* 

It  is  a  difhcult  question  to  determine  whether  a  riparian 
owner  on  the  banks  of  an  artificial  stream  can  sue   Rjo-htof 
for  pollution  of  the  water,  unless  he  has  acquired  a   action  for 
right  or  easement  by  grant  or  long  enjoyment  that   ia  the  ab- 

^Gnc6  of 

the  water  shall  not  be  polluted.  If  he  has  not  ap-  right  to  use 
plied  the  water  to  any  purpose  of  utility,  there  can  ^^'®''- 
be  no  doubt  that  no  right  of  his  is  injured  by  pollution,  for 
he  has  no  natural  right  to  purity  of  water  as  in  the  case  of  a 
natural  stream,  and  he  therefore  cannot  sue  ;  but  if  he,  with- 
out any  right  or  by  mere  license,  has  appropriated  the  water 
for  a  purpose  of  utility,  as,  for  instance,  for  use  in  a  factory, 
and  a  stranger  without  any  right  pollutes  the  water,  the  ques- 
tion is  whether  his  possessory  title  to  the  water  is  sufficient  to 
enable  him  to  sue.  It  would  seem  that  it  is,  though  in  all 
probability  he  would  not  be  entitled  to  sue  the  owner  of  the 

«  L.  R.  2  Ch.  App.  478;  36  L.  J.  Ch.  584. 

6  Hodgkinson  v.  Ennor,  4  B.  &  S.  229;  32  L.  J.  Q.  B.  231 ;  Womersley 
V.  Church,  17  L.  T.  190  (not  elsewhere  reported).  But  see  Brown  v- 
niius,  25  Conn.  583. 


440  DISTURBANCE   OF   EASEMENTS. 

stream  under  similar  circumstances,  for  if  he  had  obtained  no 
right  to  the  use  of  the  water,  mere  appropriation  could  not 
oust  the  owner  of  the  stream  of  his  possessory  right  to  use  it 
in  any  way  he  might  think  proper,  and  among  other  things 
to  pollute  it,  and  if  he  had  obtained  a  mere  license  to  use  the 
water,  that  license  would  be  revoked  if  the  owner  did  any- 
thing by  which  it  appeared  the  permission  was  terminated,  as 
if  he  rendered  the  water  unfit  for  use.  That  mere  appropri- 
ation of  the  water  of  an  artificial  stream  by  a  riparian  owner 
will  confer  a  right  of  action  upon  him  against  any  stranger, 
who,  without  right,  pollutes  the  water  to  his  detriment,  seems 
probable  from  several  cases,  though  the  authorities  are  by  no 
means  conclusive,  and  the  point  is  nowhere  actually  decided. 
In  the  case  of  Wood  v.  Waud  *  an  expression  occurs  which 
somewhat  favors  the  doctrine  that  the  appropriator  may  sue. 
Speaking  of  an  artificial  stream  produced  by  the  pumping  of 
water  from  a  mine  which  flowed  thence  over  the  land  of  sev- 
eral persons,  it  was  said  that  the  mine  owners  merely  get  rid 
of  a  nuisance,  and  that  no  right  can  be  acquired  against  them 
that  the  stream  shall  not  be  stopped,  but  that  each  landowner 
over  whose  ground  the  water  flows  may  take  and  use  any  of 
the  water  he  pleases  while  it  is  upon  his  soil ;  that  proprietors 
of  the  land  below  have  no  right  to  any  part  of  the  water  until 
it  has  reached  their  own  land,  that  they  have  no  right  to  com- 
pel the  owners  above  to  permit  the  water  to  flow  through 
their  land  for  their  benefit,  and  consequently  that  they  have 
no  right  of  action  if  they  refuse  to  do  so.  "  If  they  polluted 
the  water  so  as  to  be  injurious  to  the  tenant  below,  the  case 
would  be  different^ 

It  seems,  therefore,  from  this  opinion  of  the  court,  that 
though  the  landowner  might  have  no  right  to  receive  the 
water,  yet  that  having  received  it,  it  would  be  an  actionable 
injury  if  any  one  without  right  polluted  it,  the  cause  of  ac- 
tion apparently  arising  from  the  injury  sustained  after  lawful 
appropriation  of  the  water.  The  principal  case,  however, 
which  bears  upon  the  subject  is  Whaley  v.  Laing,**  in  which  it 

=  3  Exch.  at  p.  779  ;  18  L.  J.  Exch.  at  p.  314. 

''  2  H.  &  N.  476;  26  L.  J.  Exch.  327:  affirmed  in  the  Exchequer  Cham- 


WATER.  441 

appeared  that  the  plaintiffs  obtained  leave  to  take  water  from 
a  canal  by  means  of  pipes  for  the  purpose  of  supplying  their 
engines,  and  that  the  defendant,  without  justification,  poured 
chemical  matter  into  the  water,  which  had  a  detrimental 
effect  on  the  machinery  of  the  plaintiffs.  The  court  were  of 
opinion  that  the  plaintiffs  were  entitled  to  recover,  though 
not  without  considerable  doubt  arising  from  the  form  of  the 
declaration.  The  plaintiffs,  the  court  said,  had,  by  permis- 
sion of  the  owners  of  the  canal,  got  possession  of  a  certain 
quantity  of  water  in  their  cistern  or  reservoir,  which  water 
they  were  entitled  to  pump  up  from  the  cistern  or  reservoir 
as  much  as  they  would  have  been  entitled  to  use  it  if  they 
had  taken  it  up  in  a  pail  or  bucket.  Upon  their  emptying 
the  cistern  or  reservoir,  other  water  flowed  in  from  the  canal 
to  supply  its  place.  This  water  the  defendant  had  fouled, 
and  the  consequence  was  that  foul  water  flowed  into  the  plain- 
tiff's cistern,  the  plaintiffs  only  contributing  thereto  by  re- 
moving the  water  already  therein,  which  they  had  a  clear 
right  to  do  ;  and  this  being  done  without  justification  by  the 
defendant,  it  gave  the  plaintiffs  a  cause  of  action.  There 
was,  it  was  added,  an  allegation  in  the  declaration  traversed 
by  the  defendant,  namely,  that  the  water  ought  to  flow  with- 
out being  fouled  in  the  canal.  The  court  considered  that  to 
mean  not  an  assertion  of  title  in  the  plaintiffs,  but  that  the 
defendant  had  no  right  to  foul  the  water  there.  It  should  be 
noticed  that  the  court  then  expressly  said  that  they  gave  no 
opinion  on  many  of  the  points  discussed  in  the  argument,  par- 
ticularly as  to  whether  the  plaintiffs  had  any  possessory  title 
to  the  water  in  the  canal,  so  that  if  the  defendant  had  stopped 
its  flow  to  the  plaintiffs,  or  if  the  plaintiffs  had,  in  order  to 
get  the  water,  to  go  to  the  canal  with  a  bucket,  and  had 
drawn  it  foul  from  the  canal,  any  action  could  have  been 
maintained  ;  the  opinion  of  the  court  proceeded  on  the  ground 
thatthe  defendant  caused  foul  water  to  flow  on  the  plaintiff's 
premises  without  right  to  do  so,  and  that  opinion,  it  was 
added,  was  warranted  by  the  cases  cited,  which  showed  that 

ber,  the  judges  being  divided  in  opinion,  3  H.  &  N.  675;  27  L.  J.  Exch. 
422. 


442  DISTURBANCE   OF  EASEMENTS. 

where  there  is  a  right  to  water  there  is  a  right,  if  it  comes  or 
is  sent,  to  have  it  come  or  have  it  sent  without  pollution.  In 
the  Exchequer  Chamber  much  difference  of  opinion  prevailed 
among  the  judges.  Willes  and  Crowder,  J  J.,  thought  that 
the  action  would  lie  on  the  ground  that  the  plaintiffs  were  in 
possession,  and  the  defendant  was  a  wrong-doer.  Crompton 
and  Erie,  JJ.,  thought  the  judgment  should  be  for  the  de- 
fendant, on  the  ground  that  the  declaration  informally  alleged 
a  right  to  the  use  of  the  water,  and  that  no  right  was  proved, 
but  they  would  not  say  that  under  some  circumstances  an  ac- 
tion might  not  lie  if  one  person  had  permission  to  use  water 
and  a  stranger  wrongfully  polluted  it,  for  that  such  an  action 
would  be  founded,  not  on  the  title  or  right  to  the  water,  but 
on  the  injury  to  the  property  of  the  plaintiffs.  Williams,  J., 
thought  the  verdict  should  have  been  found  for  the  plaintiffs, 
but  that  judgment  should  be  arrested,  as  the  declaration  was 
bad  in  substance,  for  in  his  opinion  it  showed  no  cause  of  ac- 
tion ;  he  agreed  with  the  barons  of  the  exchequer  as  to  the 
meaning  of  the  declaration,  but  then  as  it  did  not  allege  that 
the  plaintiffs  were  rightfully  in  possession,  and  there  was 
nothing  to  show  that  they  themselves  were  not  wrong-doers 
in  using  the  water  for  their  engines,  he  thought  that  judg- 
ment should  be  arrested.  Whiteman,  J.,  also  thought  the 
declaration  disclosed  no  cause  of  action,  for  reasons  similar  to 
those  given  by  Williams,  J.  From  these  authorities  it  is 
very  difficult  to  determine  what  the  law  is  on  this  point.  In 
the  case  of  Whaley  v.  Laing,  so  much  doubt  and  difference  of 
opinion  existed  in  the  court,  that  the  case  is  of  little  value  as 
an  authority.  Possibly,  if  a  similar  case  arose,  it  would  be 
held  that  a  difference  exists  when  the  water  is  used  by  per- 
mission, from  instances  when  it  is  taken  without  any  right 
and  without  license ;  for  if  permission  to  use  the  water  is 
given,  there  is  a  sort  of  possessory  title,  though  there  is  no 
legal  right  to  the  undisturbed  use  of  the  water,  but  if  the 
person  using  it  has  not  even  a  license,  it  is  questionable 
whether  he  can  be  said  even  to  have  a  possessory  title.* 

*  The  learned  editors  of   Smith's  Leading  Cases  seem  to  think  that  a 
mere  licensee  who  uses  the  water  of  an  artificial  stream  cannot  sue  even 


WAYS.  443 

The  docti'ine  of  contributory  negligence  or  mutual  fault 
does  not  applv  to  actions  for  the  disturbance  of  an    _,  .  ^.„, 

/  ^    ''  .  Plaintirt's 

easement  in  a  watercourse  ;  and  although  the  plain-  own 
tiff  may  have  partially  obstructed  the  natural  flow 
of  water  to  his  own  mill,  he  may  nevertheless  recover  for  an 
additional  and  independent  wrongful  obstruction  by  the  de- 
fendant, the  damage,  of  course,  being  carefully  limited  to  the 
defendant's  acts  alone. ^  Neither  do  the  principles  of  set-off, 
recoupment,  or  benefits  confei-red  by  the  defendant  affect  his 
liability  for  any  wrongful  interference  with  the  plaintiff's 
right.  But  if  the  defendant  be  charged  with  a  diversion  of 
an  unreasonable  amount  of  water  from  the  stream  above  the 
plaintiff's  premises,  he  may  show  that  he  had,  by  cutting 
ditches  across  his  land,  and  connecting  with  the  sti-eam,  in- 
creased the  natural  flow  of  water  in  the  same,  that  the 
amount  he  had  afterwards  diverted  was  not  unreasonable,  and 
so  no  infringement  of  the  plaintiff's  legal  right  had  occurred.^ 

WATS. 

Actions  will  lie  against  a  servient  owner  for  obstruction  of 
a  right  of  way  only  when  he  causes  the  obstruction    ^o  right  of 
by  his  own  act ;  ^  he  cannot  be  sued  if  the  way  be-   |^g''"g"  ^°^ 
comes  impassable    otherwise   than   by  his  act;    he,    repair  a 
therefore,  cannot  be  sued  if  the  way  is  out  of  repair, 
for  it  is  the  business  of  him  to  whom  a  right  of  way  belongs 

a  wrong-doer  for  pollution;  for  tbey  say:  "  Thus,  as  a  mere  license  con- 
fers no  right  at  common  law  against  the  licensor,  but  only  excuses  that 
■which  if  not  done  under  the  license  would  have  been  a  wrong  to  him,  the 
licensee  of  that  which  might  have  been  conferred  as  an  easement  or  profit 
a  prendre  cannot,  it  is  apprehended,  maintain  an  action  against  a  wrong- 
doer for  depriving  him  of  the  benefits  which  he  might  or  would  have  en- 
joyed under  the  license."  The  case  of  Whaley  v.  Laing  is  then  referred 
to.     Note  to  Armory  v.  Delamirie,  1  Sm.  Lead.  Cas.  6th  ed.  p.  318. 

1  Clarke  v.  French,  122  Mass.  419. 

2  Elliot  V.  Fitcbburg  Railroad  Co.  10  Cush.  191.  The  reporter's  note 
does  not  indicate  this  point,  but  it  was  directly  decided  in  the  case  at  p. 
197. 

8  But  the  owner  of  land,  through  which  another  has  a  right  of  way,  is 
liable  for  the  obstruction  of  others,  customers  of  his,  who  occupy  the  way 
with  his  knowledge  and  assent,  and  thereby  prevent  a  free  and  conven- 
ient use  of  the  way.     Dennis  v.  Sipperly,  17  Hun,  69. 


444  DISTURBANCE    OF   EASEMENTS. 

to  repair  the  way.^  Thus  it  has  been  decided  that  if  a  man 
grants  a  ■watercourse  and  afterwards  stops  it,  or  demises  a 
house  and  estovers,  and  afterwards  destroys  the  wood,  the 
party  grieved  has  a  right  of  action,  for  those  are  wilful  acts  of 
the  grantor  of  the  right,  and  it  is  a  misfeasance  in  him  to  an- 
nul or  avoid  his  own  grant,  and  so  if  a  grantor  of  a  right  of 
way  voluntarily  stops  it,  an  action  will  lie  for  the  misfeasance, 
but  for  the  bare  nonfeasance  in  not  repairing  the  way  when  it 
is  out  of  repair,  no  action  will  lie/ 

The  act  of  stopping  a  way  is  commonly  an  act  which  pro- 
Action  by  <3^^ces  injury  or  inconvenience  to  the  occupier  of  the 
reversioner   dominant  tenement  alone,  and  not  to  a  reversioner, 

for  ob-  '  _  _ 

struction  of  SO  that  the  latter  cannot  sue  for  it ;  ^  but  if  the  ob- 
struction is  of  a  permanent  character,  or  calculated 
to  call  his  right  in  question,  the  latter,  as  well  as  the  occu- 
pier, may  sue.  In  Bell  v.  The  Midland  Railway  Company'^ 
it  was  held  that  the  placing  of  railway  trucks  on  a  siding  with 
a  view  of  preventing  access  from  a  wharf  over  the  siding  to 
the  railway,  and  permanently  keeping  them  there,  so  as 
wholly  to  obstruct  the  way,  was  an  injury  for  which  the  re- 
versioner, under  the  circumstances  of  the  case,  might  sue  ; 
and,  in  Kidgill  v.  Moor,*  it  was  held  that  even  the  locking  of 
a  gate  across  a  way  might  be  an  injury  to  a  reversionary  es- 
tate. * 

Obstructions  of  ways  may  be  either  permanent  or  tempo- 
^^^  rary  in  their  character,  that  is,  the  article  or  mode  of 

obstruc-  obstruction  may  be  placed  in  the  way  with  the  in- 
Right  of  tention,  evident  from  its  character,  of  its  not  being 
action.  removed  again,  or  it  may  be  a  movable  object  which 
it  may  be  inferred  the  party  obstructing  the  way  will  sooner 
or  later  take  away.     Thus,  the  obstruction  may  be  by  a  fence 

1  Jones  V.  Percival,  5  Pick.  486;  Walker  v.  Pierce,  38  Vt.  94. 

.^Pomfret  v.  Ricroft,  1  Wms.  Saund.  320  d;  Taylor  v.  Whitehead,  Doug. 
716. 

0  Mott  V.  Shoolbred,  L.  R.  20  Eq.  22 ;  44  L.  J.  Ch.  380. 

*  10  C.  B.  N.  S.  287;  30  L.  J.  C.  P.  273. 

<  9  C.  B.  364;  9  L.  J.  C.  P.  17  7.  And  see  Richardson  v.  Bigelow,  15 
Gray,  154. 


WAYS.  445 

fixed  to  the  earth  or  by  the  ploughing  up  of  a  path  or  break- 
ing down  of  a  bridge,  or  it  may  on  the  other  hand  be  by  the 
placing  of  a  cart  or  bales  of  goods  in  the  middle  of  a  road. 
When  obstructions  are  permanent  in  their  character  little  dif- 
ficulty can  arise  as  to  the  right  of  action,  but  questions  have 
several  times  arisen  whether  obstructions  of  a  merely  tempo- 
rary character  are  such  as  to  support  an  action,  for  merely 
temporary  obstructions  may  be  and  have  sometimes  been  so 
continually  repeated  as  to  interfere  with  the  user  of  a  right  of 
way  as  much  as  if  they  were  permanent.  In  the  case  of  Bell 
V.  The  Midland  Railway  Company  just  cited  it  was  held  that 
the  placing  of  railway  trucks  across  a  private  siding  leading 
to  the  defendant's  railway  was  an  obstruction  of  the  way  suffi- 
ciently permanent  in  its  character  to  support  an  action  by  a 
reversioner  because  the  trucks  were  kept  there  continually  for 
the  purpose  of  stopping  the  user  of  the  way.  So,  again,  in  the 
case  of  Thorpe  v.  Brumfitt''  it  was  held  that  the  continual  ob- 
struction of  a  way  to  an  inn-yard  by  loading  and  unloading 
wagons  was  an  unjustifiable  obstruction  which  the  Court  of 
Chancery  restrained  by  injunction,  and  this  remedy  was 
granted  although  the  obstructions  were  not  created  by  one  de- 
fendant alone  but  by  several  who  had  warehouses  abutting  on 
the  way,  and  although  the  obstruction  created  by  each  sepa- 
rately might  not  have  been  sufficient  of  itself  to  support  the 
suit. 

An  action  lies  for  erecting  a  building  over  a  passage-way 
which  renders  the  way  low,  dark,  or  otherwise  less  convenient 
or  useful,  to  any  practical  extent  than  the  owner  had  a  right 
to  have.i 

A  private  right  of  way  is  not  necessarily  merged  and  ex- 
tinguished in  a  public  right  of  way  if  the  latter  right 
is  acquired  over  the   same  soil  where  the  private   tion  of  pri- 
right  exists.     It  is  therefore  no  answer  to  an  action    overapub- 
for  obstructing  a  private  right  of  way  to  say  that  a   ^''^  ^°^^' 
public  right  of  way  has  been  acquired  over  the  same  road.*   It 

J  L.  R.  8  Ch.  App.  650 ;  Mott  v.  Shoolbred,  L.  R.  20  Eq.  22. 
1  Richardson  v.  Pond,  15  Gray,  387. 
*  Allen  V.  Orniond,  8  East,  4. 


446  DISTURBANCE   OF  EASEMENTS. 

is  necessary  that  this  point  should  be  borne  in  mind,  for  the 
only  remedy  for  obstruction  of  a  public  way  is  by  indictment, 
an  action  not  being  maintainable  unless  the  plaintiff  has  sus- 
tained some  special  and  peculiar  damage  over  and  above  the 
rest  of  the  public  :  but  it  would  produce  great  injustice  if  the 
owner  of  a  private  right  of  way  were  to  lose  his  right  on  the 
public  also  acquirhig  a  right  of  way,  for  then  he  would  also 
lose  his  riaht  of  action  which  he  might  wish  to  avail  himself 
of  to  get  rid  of  the  obstruction.  It  has  been  shown,  however, 
that  a  private  way  cannot  be  acquired  by  prescription  over  a 
public  road,  and  therefore  if  it  can  be  proved  that  the  public 
right  existed  before  the  alleged  private  right  of  way,  an  ac- 
tion for  obstruction  of  the  latter  will  be  defeated. 

If  a  private  way  leads  into  a  public  road  an  action  will  lie 
Obstruc-  ^^^'  obstruction  of  the  private  way,  although  the  ob- 
tion  of  a       stacle  is  actually  placed  in  the  public  road.     A  dec- 

pnvate  .  ,  •      •  «• 

way  by  an  laration,  therefore,  which  alleged  that  the  plaintiff, 
a  public  who  owued  a  public-house  on  the  banks  of  the 
road.  Thames,  had  a  right  of  access  to  his  house  from  the 

river,  and  that  the  defendant  wrongfully  put  timber  in  the 
river  so  as  to  obstruct  the  access  to  the  house,  was  held  to 
disclose  a  good  cause  of  action  as  showing  an  obstruction  to 
the  private  right ; '  and  where  a  wharf  abutted  upon  a  recess 
of  the  river  Thames,  up  which  the  water  flowed,  and  by 
means  of  which  access  was  obtained  for  barges  to  come  from 
the  river  to  the  wharf,  it  was  held  that  the  owner  of  the 
wharf  had  a  private  right,  over  and  above  the  rest  of  the  pub- 
lic, of  access  to  his  wharf,  acquired  by  fifty  years  user,  and  an 
injunction  was  granted  to  restrain  the  Fishmongers'  Company 
and  the  conservators  of  the  river  from  making  an  embank- 
ment in  the  river,  under  certain  statutory  powers,  in  such  a 
manner  as  to  block  up  the  recess  of  the  river  and  impede  the 
plaintiff's  access  to  his  wharf,"* 

'  Rose  V.  Groves,  5  M.  &  G.  613;  12  L.  J.  C.  P.  251. 
♦"  Lyon  V.   The  Fishmongers'  Co.  and  the  Conservators  of  the   River 
Thames,  L.  R.  10  Ch.  App.  679  ;  46  L,  J.  Ch.  68. 


CHAPTER   V. 

ON  EXTINCTION,  SUSPENSION,  AND  REVIVAL  OF  EASEMENTS. 

Having  in  the  previous  chapters  traced  the  history  of  the 
law  of  easements  by  describing  their  nature  and  pecuhar  inci- 
dents, the  modes  in  which  they  may  be  acquired,  their  extent 
and  the  way  in  which  they  may  be  used,  and  the  injuries  to 
which  the  owners  of  those  rights  may  be  subjected  with  re- 
gard to  them,  together  with  the  remedies  afforded  by  law  for 
such  injuries,  it  remains  in  this,  the  last  chapter  of  this  work, 
to  discuss  the  modes  in  which  easements  and  natural  rights 
may  be  extinguished  or  temporarily  suspended,  and  when  they 
are  suspended,  in  what  cases  and  by  what  means  they  may 
be  revived.  Licenses,  moreover,  which  have  in  the  previous 
chapters  claimed  but  little  attention,  demand  a  passing  notice 
in  this  part  of  the  work. 

Sect.  1.  —  On  Extinction,  Suspension,  and  Revival  of  Ease- 
ments generally. 

In  considering  the  subject  of  extinction  and  suspension  of 
easements,  it  will  be  found  of  the  greatest  impor-   Extinction 
tance  to  bear  in  mind  the  distinction  which  exists   pensfon'of 
between  easements,  properly  so  called,  and  natural    casements 

'  ^      i        •^  _  _       '  and  nat- 

rights,  particularly  as  to  their  orighi  and  mode  of  urai  rights, 
acquisition.  It  has  been  explained  that  easements  always 
have  their  origin  in  a  grant,  either  express  or  implied,  and 
are  created  at  the  will  of  the  owner  of  the  servient  tenement, 
but  that  natural  rights  are  incident  to  the  possession  of  the 
soil  of  the  dominant  tenement,  that  they  are  in  every  case 
given  by  law,  and  are  attached  to  that  soil  permanently,  with- 
out respect  to  the  will  of  the  servient  owners.  From  this 
peculiarity  and  distinction  it  follows   that  while    easements 


448      EXTINCTION,   SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

may  be  either  suspended  temporarily  or  extinguished  perma- 
nently, natural  rights  can  be  suspended  only,  and  not  extin- 
guished, so  that  as  soon  as  any  opposing  power  by  which  nat- 
ural rights  are  suppressed,  is  removed,  they  at  once,  and 
without  any  grant,  revive  by  force  of  the  law  which  annexed 
them  to  the  soil.  Thus  natural  rights  may  be  sus]3ended  on 
the  creation  by  grant  of  adverse  easements,  but  if  those  ease- 
ments are  extinguished  the  natural  rights  at  once  revive.  To 
take  an  instance  of  this,  a  riparian  owner  has  a  natural  right 
to  the  uninterrupted  flow  of  the  water  of  a  natural  stream, 
but  a  mill-owner  may  acquire  an  adverse  right,  entitling  him 
to  divert  the  water  before  it  reaches  the  riparian  owner's  land, 
and  the  natural  right  is  in  that  case  suspended ;  but  if  the 
mill  is  afterwards  permanently  removed  the  easement  is  ex- 
tinguished, and  the  natural  right  revives.  So,  also,  if  a  right 
has  been  acquired  to  pollute  air  or  water  by  carrying  on  a 
particular  business  in  a  factory,  the  natural  right  of  the  neigh- 
bors to  purity  of  air  or  of  the  water  is  suspended,  but  it  im- 
mediately revives  on  removal  of  the  factory  and  abandon- 
ment of  the  trade,  ^his  principle  of  law  has  been  fully 
recognized  in  several  cases  which  have  been  determined  in 
the  courts,  one  of  the  earliest  of  which  is  Sury  v.  Pigot," 
which  was  an  action  for  stopping  a  natural  watercourse,  and 
the  question  was  whether  the  right  to  the  flow  of  the  water 
had  been  extinguished  by  unity  of  ownership.  The  case  was 
fully  argued  and  the  right  was  compared  to  a  right  of  way 
and  other  rights  which  would  be  extinguished  by  that  means, 
but  it  was  held  that  the  natural  right  to  the  flow  of  water 
was  not  extinguished,  Whitlock,  C.  J.,  saying:  "A  way  or 
common  shall  be  extinguished,  because  they  are  part  of  the 
profits  of  the  land,  and  the  same  law  is  of  fishings  also,  but 
in  our  case  the  watercourse  doth  not  begin  by  the  consent  of 
parties  nor  by  prescription,  but  ex  jure  naturce,  and  therefore 
shall  not  be  extinguished  by  unity,"  and  the  report  contin- 
ues :  "Two  closes  adjoin  together,  the  one  being  by  prescrip- 
tion bound  to  a  fence,  the  owner  of  the  one  purchase,  the 
other  dies,  having  issue  two  daughters,  who  make  partition, 
°  Popham's  Rep.  166. 


EASEMENTS  GENERALLY.  449 

it  is  a  quaere  whether  the  inclosure  be  revived  ;  yet  I  con- 
ceive clearly  that  by  unit}''  of  the  possession  the  inclosure  is 
destroyed,  for  fencing  is  not  natural,  but  comes  by  industry  of 
men,  and  therefore  by  unity  it  shall  be  gone  ;  and  so  briefly 
with  this  diversity  he  concluded,  that  where  the  thing  hath  its 
being  by  prescription  unity  will  extinguish  it :  but  where  the 
thing  hath  its  being  ex  jure  naturce^  it  shall  not  be  extin- 
guished." This  view  was  approved  by  the  Court  of  Excheq- 
uer in  the  case  of  Wood  v.  Waud,*  where  it  is  said  in  the 
judgment:  "  Mr.  Justice  Whitlock  also  in  Sury  v.  Pigot,  and 
Crew,  C.  J.,  and  Lee,  C.  J.,  in  Brown  v.  Best,  treat  the  right 
as  arising  ex  jure  naturoe ;  and  consequently  it  is  not  extin- 
guished as  an  easement  in  alieno  solo  would  be  by  unity.  And 
this  seems  to  us  the  correct  opinion,  though  it  is  not  necessary 
to  decide  the  point  on  the  present  occasion."  It  has  in  many 
of  the  earlier  cases  been  said  that  an  easement  of  necessity  is 
not  extinguished  by  unity  of  ownership,  but  in  later  cases  the 
principle  of  the  law  has  been  placed  upon  its  right  footing  in 
this  respect,  for  it  has  more  recently  been  explained  that  ease- 
ments of  necessity,  like  other  easements,  are  extinguished  by 
unity  of  ownership,  but  that  upon  severance  of  the  original 
dominant  and  servient  tenements  a  fresh  easement  of  neces- 
sity is  newly  created  if  the  necessity  continues." 

Extinction  of  easements  may  be  effected  in  various  ways, 
as  by  act  of  parliament,  by  operation  of  law,  and  by        .     . 
the  act  of  the  owner,  as  by  release,  actual  or  pre-   of  ease- 
sumed,  or  by  abandonment,  but  they  can  never  be 
extinguished  or  abridged  by  the   mere   act   of   the   servient 
owner  alone.** 

*  3  Exch,  at  p.  775;  18  L.  J.  Exch.  at  p.  312;  Mason  v.  The  Shrews- 
bury and  Hereford  Railway  Co.  per  Cockburn,  C.  J.,  L.  R.  6  Q.  B.  at  p. 
588;  40  L.J.  Q.  B.  at  p.  298. 

=  Pheysey  v.  Vicary,  16  M.  &  W.  per  Parke,  B.,  at  p.  491;  Holmes  i'. 
Goring,  2  Bing.  76;  2  L.  J.  C.  P.  134. 

d  Selby  V.  Nettlefold,  L.  R.  9  Ch.  App.  Ill;  43  L.  J.  Ch.  359  ;  Hawkins 
V.  Carbines,  27  L.  J.  Exch.  44  (not  elsewhere  reported):  Home  v.  Taylor, 
Noy's  Rep.  128.  But  in  Ballard  v.  Butler,  30  Me.  94,  A.  had  an  easement 
by  grant  to  take  water  from  the  well  of  B.  The  latter  covered  over  the 
well  with  brick  buildings  of  a  permanent  character,  and  the  same  so  con- 
29 


450     EXTINCTION,    SUSPENSION,   AND  REVIVAL   OF   EASEMENTS. 

1.  By  act  of  parliament  easements  may  be  extinguished 

either  by  the  express  terms  of  the  act  or  by  impli- 
Byactof  .  ,  ,  .         .  ,      ,  , 

pariia-         cation  ;  so  they  may  be  extinguished  upon  the  per- 

™^"  ■  formance  of  something  in  execution  of  the  purpose 

of  an  act,  as,  for  instance,  it  was  held  that  when  commission- 
ers, acting  under  the  General  Inclosure  Act,  41  Geo.  III.  c. 
109,  made  an  allotment  of  waste  land  over  which  there  had 
been  a  private  right  of  way,  and  refrained  from  noticing  the 
way  or  setting  out  another  in  its  stead  in  their  award,  the 
right  of  way  was  extinguished.* 

So  where  by  a  public  act  a  corporation  was  authorized  to 
build  a  pier  according  to  certain  specified  plans,  but,  if  so  con- 
structed, a  certain  public  right  of  way  would  thereby  become 
unavailable,  it  was  held  that  the  act  must  be  considered  to 
have  extinguished  th^  right  of  way  by  implication,  although 
no  reference  thereto  was  made  in  the  act.^ 

A  right  of  way  to  certain  buildings  is  completely  extin- 
guished by  laying  out  and  constructing  a  public  highway  over 
the  very  site  of  such  buildings,  and  cannot  be  revived.^  The 
action  of  the  legal  authorities  has  made  the  future  enjoyment 
of  the  easement  absolutely  impossible. 

So  where  an  easement  in  favor  of  lot  A  existed  by  ])'>^6sc'>'ip- 
tion  in  a  chimney  on  the  adjoining  lot  B,  and  the  city,  for  the 
purpose  of  widening  a  street,  purchased  lot  A,  took  down 
the  buildings  thereon,  appropriated  most  of  the  land  for  the 

tinued  for  several  years.  Afterwards  A.  sold  his  estate  (the  dominant 
estate)  to  C,  and  B.  sold  the  servient  estate  to  D,;  and  it  was  held  that 
the  easement  was  so  far  extinguished  by  the  act  of  B.  that  C.  could  not 
maintain  an  action  against  D.  for  continuing  the  obstruction,  or  destruc- 
tion. And  in  Arnold  v.  Cornman,  50  Penn.  St.  361,  the  owner  of  the 
servient  estate,  subject  to  a  right  of  way,  openly  erected  a  permanent  wall 
across  the  way,  which  the  other  saw  going  on  day  by  day  without  objec- 
tion, and  even  directed  in  some  particulars,  and  this  was  held  to  amount 
to  an  estoppel.  And  see  the  valuable  case  of  Taylor  v.  Hampton,  4  Mc- 
Cord,  96;  Pope  v.  O'Hara,  48  N.  Y.447;  Corning  v.  Gould,  16  Wend.  531. 
«  White  V.  Reeves,  2  Moo.  23. 

1  Corporation  of  Yarmouth  v.  Simmons,  10  Ch.  D.  518  (1878). 

2  Hancock  v.  Wentworth,  5  Met.  446.  And  see  Mussey  v.  Union  Wharf, 
41  Me.  34;  Central  Wharf  v.  India  Wharf,  123  Mass.  567. 


EASEMENTS  GENERALLY.  451 

street,  and  after  allowing  the  rest  to  remain  vacant  for  about 
six  years,  conveyed  it  to  the  plaintiff  by  a  deed  of  quitclaim, 
without  any  allusion  to  an  easement  in  the  chimney,  it  was 
held  that  the  easement  was  lost  by  abandonment  and  the 
operation  of  law,  and  that  the  plaintiff  did  not  acquire  any 
right  thereto  by  his  deed  from  the  city.^ 

2.  An  easement  may  be  extinguished  by  operation  of  law, 
as,  for  instance,  if  the  privilege  has  been  granted  for        .     . 
a   particular   purpose,  and   the   purpose   is   accom-   by  opera- 
plished.     An  instance  of  extinction  of  an  easement   law. 
by  this  means  is  to  be  found  in  the  case  of  The  Na-   Completion 

.  of  the  pur- 

tional  Guaranteed  Manure  Con^pany  v.  Donald,-'' the  pose  of  a 
facts  of  which  case  were  that  a  company  had  been  in- 
corporated by  act  of  parliament  for  the  purpose  of  forming  a 
canal,  and  the  canal  when  made  was,  according  to  the  terms 
of  the  act,  supplied  with  water  taken  by  means  of  a  cut  from 
a  certain  dam  or  mill-race,  and  some  water-wheels  and  sluices 
were  erected  in  order  to  render  the  supply  of  water  effectual 
for  the  purpose  of  the  canal ;  subsequently  a  grant  of  the 
watercourse  was  made  to  the  company  by  the  Corporation  of 
Carlisle  who  were  owners  of  the  land  through  which  the  cut 
was  made.  Some  time  afterwards  an  act  of  parliament  was 
passed  by  which  the  company  was  re-constituted  as  a  railway 
company  for  the  purpose  of  constructing  a  railway,  and  there- 
upon they  demised  to  the  plaintiffs  in  the  action  the  property 
they  held  at  Carlisle,  including  their  wheel-house,  together 
with  the  water-right  in  dispute  in  the  action,  and  it  was  de- 
termined by  the  court  that  the  railway  company  had  no  right 
to  make  the  demise,  for,  that  the  company  had  arisen  out  of 
the  canal  company  which  had  a  right  to  the  watercourse  for 
the  purpose  of  their  canal,  but  that  as  that  company  had 
ceased  to  exist,  and  the  railway  company  had  no  canal  for 
which  to  take  the  water,  the  right  to  take  it  also  ceased  ;  and 
Pollock,  C.  B.,  added,  that  where  an  easement  is  granted  for 
a  particular  purpose,  or  arises  out  of  the  enjoyment  of  a  right 
for  a  particular  purpose  which  no  longer  exists,  so  that  the 

1  Canny  v.  Andrews,  123  Mass.  155. 
/4  p.  &  N.  8;  28  L.  J.  Exch.  185. 


452      EXTINCTION,    SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

easement  cannot  be  applied  to  the  object  for  which  it  was 
originally  granted,  there  is  an  end  of  the  easement,  whatever 
its  nature  might  be. 

It  is  on  this  principle  that  easements  of  necessity  are  ex- 
Extinction  tinguished  when  the  necessity  ceases.  It  has  been 
ments  of  tliought  that  the  termination  of  the  necessity  would 
onTermf-  ^'^^  effect  the  extinction  of  the  easement,^  but  that 
nation  of  opinion  has  not  been  supported.  The  question  was 
sity.  raised   and   determined   in  the  case  of  Holmes   v. 

Goring,^  in  which  it  was  held  that  though  a  way  of  neces- 
sity may  be  acquired  at  the  time  of  the  purchase  of  partic- 
ular land,  yet  if  the  purchaser  subsequently  becomes  pos- 
sessed of  other  ground  over  which  he  can  pass,  the  necessity 
and,  therefore,  the  reason  for  the  existence  of  the  right  of  way 
is  at  an  end,  and  the  right  itself  also  ceases  ;  in  support  of 
this  decision  a  passage  from  a  note  of  Mr.  Serjt.  Williams  to 
the  case  of  Pomfret  v.  Ricroft,  was  cited  by  Best,  C.  J.,  where 
it  is  said  that  "  a  way  of  necessity,  when  the  nature  of  it  is 
considered,  will  be  found  to  be  nothing  else  than  a  way  by 
grant,"  but,  added  the  judge,  a  grant  of  no  more  than  the 
circumstances  which  raise  the  implication  of  necessity  require 
should  pass.  And  this  doctrine  is  universally  recognized  in 
America.^  And,  therefore,  if  one  has  a  way  by  necessity  to 
his  land  over  another's  land,  and  a  public  highway  is  after- 
wards laid  out  adjoining  his  land,  although  on  the  opposite 
and  more  distant  side  thereof,  his  right  of  way  by  necessity  is 
gone,  although  it  would  be  more  convenient  for  him  to  con- 
tinue to  use  it  rather  than  to  use  the  highway.^ 

Alteration  in  the  condition  or  character  of  a  dominant  ten- 
_   .     .       ement  will   frequentlv  effect  the   extinction   of   an 

Extinction  .  „  , 

on  altera-  easement  by  operation  of  law,  and  questions  of  much 
dominant  difficulty  have  in  many  cases  arisen  as  to  the  result 
tenement.     q£  alterations  of  dominant  tenements.     It  is  obvious 

0  Buckby  v.  Coles,  5  Taunt.  311. 
''  2Bing.  76;  2  L.  J.  C.  P.  134. 

1  See  Baker  v.  Crosby,  9  Gray,  421  ;  Viall  v.  Carpenter,  14  Gray,  126;  - 
Abbott  V.  Stewartstown,  47  N.  H.  230;  Pierce  v.  Selleck,  18  Conn.  321; 
Alley  V.  Carlton,  29  Tex.  78;  Screven  v.  Gregorie,  8  Rich.  L.  158;  Holmes  v. 
Seeley,  19  Wend.  507;  N.  Y.  Ins.  and  Trust  Co.  v.  Milnor,  1  Barb.  Ch.  353. 

2  See  Abbott  v.  Stewartstown,  47  N.  H.  230. 


EASEMENTS  GENERALLY.  453 

that  in  many  cases  alterations  may  be  of  a  trifling  nature, 
and  of  a  character  which  will  not  inflict  sensible  injury  on 
the  servient  tenement  by  increasing  the  burden  of  the  ease- 
ment or  otherwise,  while,  on  the  other  hand,  the  burden  may 
often  be  seriously  enlarged,  and  the  user  of  the  right  totally 
changed  from  that  originally  contemplated  by  the  grantor  of 
the  privilege.  The  law  marks  this  difference,  and  it  will  be 
found  that  the  change  in  the  character  of  the  user  and  in  the 
extent  of  the  burden  may  generally  be  adopted  as  a  criterion 
whether  an  easement  has  been  extinguished. 

It  may  be  remarked  that  rights  to  light  acquired  under  the 
Prescription  Act  are  not  affected  by  this  principle,  as  will  be 
shown  hereafter,  but,  as  already  shown,  these  rights  stand 
upon  a  footing  peculiar  to  themselves. 

As  a  general  rule  it  may  be  taken  that  any  alteration  of  a 
dominant  tenement,  of  such  a  nature  that  the  tene- 

.  AUeratioa 

ment  or  the  mode  of  user  of  an  easement  is  substan-  must  be 
tially  changed  in  character,  or  that  the  burden  on 
the  servient  tenement  is  materially  increased,  will  cause  the 
extinction  or  suspension  of  an  easement,  unless  the  easement 
was  intended  for  the  benefit  of  the  dominant  tenement,  to 
whatever  purpose  it  should  be  applied,  or  in  whatever  man- 
ner the  easement  should  be  used.*  In  Allan  v.  Gomme-'  the 
question  was  as  to  the  construction  of  a  deed,  and  the  extent 
of  a  right  of  way  thereby -granted.  The  easement  granted 
was  "  a  right  of  way  and  passage  over  the  said  close  to  the 
stable  and  loft  over  the  same,  and  the  space  or  opening  under 
the  said  loft  now  used  as  a  woodhouse."  This  loft  and  wood- 
house  had  been  removed,  and  a  cottage  had  been  built  on 
their  site,  and  on  the  space  which  had  been  under  the  loft, 
and  the  question  was,  whether  the  right  of  way  was  lost,  or 
whether  the  grant  extended  the  right  to  the  spot  of  ground 
for  whatever  purpose  it  was  used.  It  was  held  that  the  words 
"  now  used  as  a  woodhouse,"  were  employed  merely  to  ascer- 
tain the  locality  of  the  dominant  tenement,  and  did  not  mean 

»  United  Land  Co.  v.  Great  Eastern  Railway,  L.  R.  10  Ch.  App,  586; 
44  L.  J.  Ch.  685. 
J  11  A.  &  E.  759;  9  L.  J.  N.  S.  Q.  B.  258. 


454      EXTINCTION,   SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

that  the  way  could  only  be  used  while  the  place  was  used  as 
a  woodhouse  ;  but  it  was  also  held  that  the  way  could  only  be 
used  to  the  spot  while  the  place  remained  in  the  same  pre- 
dicament as  it  was  in  at  the  time  of  making  the  deed,  and 
that  the  dominant  owner  might  have  the  benefit  of  the  way 
to  make  a  deposit  of  any  articles,  or  use  the  spot  in  any  way 
he  pleased,  provided  it  continued  in  the  state  of  open  ground. 
But  the  court  also  thought  the  dominant  owner  could  only  use 
the  way  for  purposes  which  were  compatible  with  the  ground 
being  open,  and  that  if  any  buildings  were  erected  upon  it,  it 
was  no  longer  to  be  considered  as  open  for  the  purposes  of  the 
grant.  It  was  also  remarked  that  the  use  of  the  dominant 
tenement  would  be  very  different  when  used  as  a  woodhouse, 
and  when  a  cottage  was  erected  ;  that  when  a  cottage  was 
built  a  much  greater  number  of  persons,  some  possibly  with 
horses  and  carts,  would  come,  and  so  considerably  increase  the 
user  of  the  way,  and  perhaps  by  that  means  obstruct  or  incon- 
venience the  servient  owner  and  prevent  him  having  the  same 
enjoyment  of  the  ground  that  he  had  before.  This  decision 
was  not  altogether  approved  by  Parke,  B.,  for,  in  the  later 
case  of  Henning  v.  Burnet,  he  expressed  an  opinion  that  it 
was  too  strict,  as  it  was  said  the  way  could  only  be  used  to  the 
place  while  it  continued  in  the  same  predicament  as  it  was  in 
at  the  time  the  grant  was  made.  No  doubt,  he  said,  if  a  right 
of  way  be  granted  for  the  purpose  of  being  used  as  a  way  to 
a  cottage,  and  the  cottage  is  changed  into  a  tan-yard,  the 
right  of  way  ceases,  but  if  there  is  a  general  grant  of  all  ways 
to  a  cottage  the  right  is  not  lost  by  reason  of  the  cottage 
being  altered.  He  thought,  however,  that  the  decision  in 
Allan  V.  Gomme  might  be  supported  by  the  context,  because 
it  was  a  reservation  of  a  right  of  way  to  a  particular  space 
only,  which  was  then  used  as  a  woodhouse,  and  was  not  like 
the  case  of  a  general  grant  of  a  way  to  Greenacre  which  would 
mean  for  whatever  purpose  the  field  was  used,  unless  limited 
by  the  context.*     Allan  v.  Gomme  was  also  criticised  in  the 

*  Henning  v.  Burnet,  8  Exch.  187;  22  L.  J.  Exch.  79;  South  Metropol- 
itan Cemetery  Co.  v.  Eden,  16  C.  B.  42;  Bower  v.  Hill,  2  Bing.  N.  C.  339; 
5  L.  J.  N.  S.  C.  P.  77. 


EASEMENTS  GENERALLY.  455 

very  late  case  of  Finch  v.  Great  Western  Railway  Company,^ 
where  Stephen,  J.,  said:  "  It  seems  to  us,  upon  the  whole,  that 
it  establishes  no  general  principle,  but  turns  upon  the  construc- 
tion of  the  particular  deed  referred  to,  a  deed  bearing  no  re- 
semblance to  the  grant  in  the  present  case."  So  also,  Willes, 
J.,  in  speaking  of  a  right  of  way  to  a  field  which  had  been  ac- 
quired by  prescription,  said  :  "  I  quite  agree  also  with  the  ar- 
gument that  the  right  of  way  can  only  be  used  for  the  field  in 
its  ordinary  use  as  a  field.  The  right  could  not  be  used  for  a 
manufactory  built  upon  the  field.  The  use  must  be  the  rea- 
sonable use  for  the  purposes  of  the  land  in  the  condition  in 
which  it  was  while  the  user  took  place."  ^  The  case  of  Rex 
V.  Tippett"*  may  be  noticed  here,  as  it  bears  upon  the  point 
under  consideration,  although  it  relates  to  a  public  and  not 
to  a  private  right  of  way.  An  act  of  parliament  had  been 
passed  to  enable  persons  to  alter  the  course  of  a  tidal  river, 
which  was,  before  the  alteration,  navigable  only  when  the  tide 
was  high.  By  the  side  of  the  river  there  was  a  public  towing- 
path  which  was  used,  in  fact,  only  at  high  tide  ;  but  after  the 
alteration  of  the  river,  when  it  became  navigable  at  all  times, 
the  towing-path  began  to  be  used  at  all  times,  and  the  ques- 
tion was,  whether  the  right  of  way  was  not  altogether  lost, 
as  the  burden  on  the  servient  tenement  had  been  so  greatly 
increased  ;  it  was  held  that  the  right  was  not  lost,  and  that 
the  path  might  be  used  at  all  times,  for  the  user  previously  to 
the  alteration  was  not  limited  by  the  ordinance  of  man  but  by 
natural  causes,  and  the  right  to  use  the  path  existed  perpetu- 
ally, though  the  way  was,  in  fact,  only  used  at  certain  times 
because  naturally  impracticable  at  others. 

If  an  alteration  in  a  dominant  tenement,  or  in  the  mode  of 
using  an  easement,  is  not  of  such  a  nature  that  the  Trifling  al- 
tenement  is  substantially  changed,  or  that  the  bar-  teration. 

1  28  Weekly  Rep.  230  (1879),  stated  more  fully  ante.  And  see  United 
Land  Co.  v.  Great  Eastern  Railway,  L.  R.  17  Eq.  167;  Newcomen  v. 
Coulson,  L.  R.  5  Ch.  D.  133. 

'  Williams  v.  James,  L.  R.  2  C.  P.  at  p.  582  ;  36  L.  J.  C.  P.  at  p.  259  ; 
The  Wimbledon  and  Putney  Commons  Conservators  v.  Dixon,  1  Ch.  D. 
362;  45  L.  J.  Ch.  353. 

»  3  B.  &  Aid.  193. 


456      EXTINCTION,   SUSPENSION,   AND   REVIVAL   OF  EASEMENTS. 

den  on  the  servient  tenement  is  materially  increased,  an  ease- 
ment is  not  destroyed  in  consequence  of  that  alteration.  Thus, 
where  the  owner  of  a  house  had  a  right  that  the  water  should 
drip  from  the  eaves  of  his  house  into  his  neighbor's  yard,  the 
right  was  held  not  to  be  lost  because  he  raised  the  height  of 
his  house  so  that  the  drops  had  a  greater  distance  to  fall,  for 
the  effect  of  that  alteration  was  not  prejudicial  to  the  servient 
tenement."  And  where  an  owner  of  some  cattle-sheds  had  a 
right  to  have  water  flow  through  a  pipe  to  the  sheds,  it  was 
held  he  had  not  lost  the  right  by  pulling  down  the  sheds  and 
building  cottages  ;  this,  however,  was  on  the  ground  that  the 
right  was  to  have  the  water  flow  to  the  premises  regardless  of 
the  purpose  to  which  it  was  applied  when  it  got  there,  but  the 
decision  would  in  all  probability  have  been  different  if  the 
burden  on  the  servient  tenement  had  been  shown  to  be  seri- 
ously increased  by  the  alteration.".  So,  also,  a  prescriptive 
right  to  the  uninterrupted  flow  of  a  stream  to  a  fulling  mill 
was  held  not  to  be  lost  by  the  mill  being  changed  to  a  grist- 
mill.^ Likewise  the  owner  of  paper  mills,  who  had  a  pre- 
scriptive right  to  pollute  a  stream  by  pouring  refuse  matter 
into  the  water,  was  held  not  to  be  restricted  in  the  use  of  his 
right  to  the  making  of  paper  from  the  materials  he  had  been 
accustomed  to  use,  provided  he  did  not,  by  changing  the  ma- 
terials, increase  the  injury  ordinarily  inflicted  on  other  ripa- 
rian proprietors.^  And  again,  a  right  to  the  uninterrupted 
flow  of  a  stream  was  held  not  to  be  lost  from  the  circumstance 
that  the  course  of  the  stream  had  been  altered  to  a  trifling  ex- 
tent.*" 

In  the  case  of  Harvey  v.  Walters  *  the  law  was  summed  up 
by  Grove,  J.,  in  the  following  terms :  "  It  appears  to  us  that 
to  hold  that  any,  even  the  slightest,  variation  in  the  enjoy- 

"  Thomas  v.  Thomas,  2  C,  M.  &  R.  34  ;  Harvey  v.  Walters,  L.  R.  8  C. 
P.  162;  42  L.  J.  C.  P.  105. 

°  Watts  V.  Kelson,  L.  R.  6  Ch.  App.  166;  40  L.  J.  Ch.  126. 

P  Luttrel's  case,  4  Coke's  Rep.  86;  Saunders  v.  Newman,  1  B.  &  Aid. 
258. 

9  Baxendale  v.  M'Murray,  L.  R.  2  Ch.  App.  790. 

'•  Hall  V.  Swift,  4  Ring.  N.  C.  381 ;  7  L.  J.  N.  S.  C.  P.  209. 

*  L.  R.  8  C.  P.  at  p.  166  ;  42  L.  J.  C.  P.  at  p.  107. 


EASEMENTS  GENERALLY.  457 

merit  of  an  easement  would  destroy  the  easement  would  vir- 
tually do  away  with  all  easements,  as  by  the  effect  of  natural 
causes  some  change  must  take  place.  Thus  water  percolating 
or  flowing  would  produce  some  wear  and  tear  and  alter  the 
height  or  width  of  the  conduit ;  so  would  weather,  alterations 
of  heat  and  cold,  &c.  In  the  case  of  ancient  lights,  changes 
in  the  transparency  of  glass,  wear  and  tear  of  frames,  growth 
of  shrubs,  &c.,  would  produce  effects  which  would  vary  the 
character  of  the  enjoyment.  In  the  user  of  a  footpath  the 
footsteps  would  never  be  on  the  same  line  or  confined  accu- 
rately to  the  same  width  of  road.  We  are  of  opinion  that  the 
question  here  as  in  Hall  v.  Swift '  and  other  cases  is  whether 
there  has  been  a  substantial  variance  in  the  mode  of  ,or  extent 
of  user  or  enjoyment  of  the  easement  so  as  to  throw  a  greater 
burden  on  the  servient  tenement.  In  the  language  of  Sir 
Richard  Kindersley,  which  was  adopted  by  the  master  of  the 
rolls  in  the  late  case  of  Heath  v.  Bucknall,"  there  must  be  an 
additional  or  different  servitude,  and  the  change  must  be  ma- 
terial either  in  the  nature  or  in  the  quantum  of  the  servitude 
imposed." 

Easements  are  also  extinguished  by  operation  of  law  if  the 
seisin  of  the  dominant  and  servient  tenements  be-   „  ^.    ^. 

Extinction 

comes  united  in  one  and  the  same  person.^    This  has   on  union  of 

.»— .  SGisin 

been   an  established   principle  of   the  English  law 

from  very  early  times,  and  was  distinctly  recognized  in  the 

case  of  Sury  v.  Pigot,"  already  noticed,  in  which  the  difference 

«  4  Bing.  N.  C.  381. 

"  L.  R.  8  Eq.  1;  38  L.  J.  Ch.  372. 

1  See  Hazard  v.  Robinson,  3  Mason,  277,  a  leading  case  in  America, 
where  Sury  v.  Pigot  was  examined  and  fully  confirmed.  Warren  v.  Blake, 
54  Me.  276  ;  Manning  v.  Smith,  6  Conn.  289  ;  Kieffer  v.  Imhoflf,  26  Penn. 
St.  438,  an  instructive  case;  Miller  v.  Lapham,  44  Vt.  416;  Fetters  v. 
Humphreys,  19  N.  J.  Eq.  472;  Denton  v.  Leddell,  23  N.  J.  Eq.  64; 
Plimpton  V.  Converse,  42  Vt.  712.  If  the  fee  and  the  easement  are  held 
under  different  titles,  the  latter  legal  and  valid,  and  the  former  defective, 
the  easement  is,  of  course,  not  extinguished.  Tyler  v.  Hammond,  11  Pick. 
194. 

»>  Popham's  Rep.  166 ;  Buckby  v.  Coles,  5  Taunt,  at  pp.  315,  316  ;  Hei- 
gate  V.  Williams,  Noy's  Rep.  119. 


458      EXTINCTION,    SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

between  easements  and  natural  rights  in  this  respect  was 
pointed  out.  The  true  reason  why  union  of  seisin  has  the 
effect  of  extinguishing  easements  is  very  apparent  on  consid- 
eration of  the  nature  of  those  rights  and  their  origin.  Ease- 
ments are,  by  their  nature,  rights,  possessed  by  the  owner  of 
one  piece  of  land  in  another  piece  of  land  belonging  to  a  dif- 
ferent person  ;  if,  therefore,  the  seisin  of  the  two  pieces  is 
united  in  one  owner  the  right  mast  necessarily  cease  to  be  an 
easement^  for  it  becomes  one  of  the  rights  of  property  to 
which  all  owners  of  land  are.  entitled.  The  right  is  not  merely 
suspended  on  union  of  seisin  so  as  to  revive  again  on  sever- 
ance of  the  properties,  for  easements  have  their  origin  in 
grant,  and  on  severance  of  the  original  dominant  and  servient 
tenements  the  original  easements  cannot  revive  without  a 
fresh  grant,  and  then,  indeed,  the  rights  granted  are  not  the 
original  but  new  easements.  The  reason  for  extinction  of 
rights  of  way  by  unity  of  seisin  is  said  by  Whitlock,  C.  J.,  in 
Sury  V.  Pigot,  to  be  because  they  are  part  of  the  profits  of  the 
land,  and  he  couples  them  with  rights  of  common  and  fishery, 
but  there  is  probably  some  mistake  in  this :  the  true  reason 
appears  in  the  case  of  Bright  v.  Walker,""  where  the  court 
said  that  an  easement  could  not  be  acquired  by  prescription 
if  unity  of  possession  existed  during  any  part  of  the  prescrip- 
tive period,  "for  then  the  claimant  would  not  have  enjoyed, 
as  of  right,  the  easement,  but  the  soil  itself ;  "  that  is,  the  en- 
joyment of  the  right  of  walking  on  the  land  would  not  be  the 
exercise  of  an  easement  but  the  enjoyment  of  one  of  the  ordi- 
nary rights  which  belong  to  every  owner  of  land  as  incident 
to  his  property  in  the  soil. 

The  expression  "  unity  of  ownership  "  has  been  commonly 
employed  to  denote  that  species  of  union  which  will 

Necessity  i      ./  i.  _      _ 

for  union  prevent  an  easement  being  acquired  by  prescription, 
or  will  extinguish  an  easement  after  it  has  been 
gained,  but  the  expression  is  not  accurate,  for  "  ownership  " 
may  mean  ownership  in  fee,  or  for  life,  or  for  a  term  of  years, 
or  any  other  period,  and  the  effect  of  the  unity  is  not  the 
same  in  all  those  cases.  The  expression  "  unity  of  posses- 
'^  1  C,  M.  &  R.  atp.  219. 


EASEMENTS  GENERALLY.  459 

sion  "  is  also  used  sometimes  to  denote  the  same  thing,  and 
this  phrase  is  equally  inaccurate.  To  extinguish  an  easement 
by  this  means  it  is  necessary  that  there  should  be  unity  of 
seisin,  for  unity  of  ownership  of  the  dominant  and  servient 
tenements  for  different  estates  merely  causes  suspension  and 
nqt  extinction  of  an  easement.  Thus,  where  the  one  ten- 
ement was  held  in  fee,  and  the  other  for  a  term  of  five  hun- 
dred 3^ears,  it  was  held  that  this  union  did  not  extinguish  but 
merely  suspended  the  easement  during  the  unity  of  posges- 
sion,  and  that  the  right  revived  on  severance  of  the  ten- 
ements.^ And  the  ownership  of  the  two  estates  must  be  co- 
extensive. If  one  is  owned  in  severalty,  and  the  other  in 
common,  the  easement  in  one  is  not  extinguished.^ 

Union  of  seisin  even  will  not  in  every  case  cause  extinction 
of  easements.  It  was  said  by  the  Court  of  Excheq-  seisia 
uer  Chamber,  in  the  case  of  James  v.  Plant,^'  «  We  eSe^in"'' 
all  agree  that  where  there  is  a  unity  of  seisin  of  the  fee  simple. 
land  and  of  the  way  over  the  land  in  one  and  the  same  per- 
son, the  right  of  way  is  either  extinguished  or  suspended  ac- 
cording to  the  duration  of  the  respective  estates  in  the  land 
and  the  way  ;  "  and  from  that  case  it  appears  that  unity  of 
seisin  will  not  extinguish,  but  will  merely  suspend  an  ease- 
ment, if  the  estates  in  the  respective  tenements  are  not  estates 
in  fee  simple.  The  facts  in  that  case  were  that  the  dominant 
tenement  was  vested  in  two  sisters  as  coparceners  in  fee,  claim- 
ing by  descent  from  their  father,  and  that  the  servient  estate 
came  to  them  from  their  mother  under  her  marriage  settle- 
ment as  tenants  in  common  in  tail  general,  and  the  court  said 
that  there  could  be  no  doubt  but  that  any  right  of  way  which 
before  the  unity  of  seisin  belonged  to  the  dominant  tenement 
over  the  servient  tenement,  became  suspended  in  law  from  the 
moment  when  such  unity  of  seisin  commenced ;  and  that  such 
suspension  of  the  right  would  continue  until  the  unity  of  seisin 

^  Thomas  v.  Thomas,  2  C,  M.  &  R.  34  ;  Simper  v.  Foley,  2  John.  &  H. 
555. 

1  Atlanta  Mills  v.  Mason,  120  Mass.  244.  See  Bradley  Fish  Co.  v. 
Dudley,  37  Conn.  136. 

y4  A.  &E.  at  p.  761. 


460      EXTINCTION,   SUSPENSION,   AND   REVIVAL   OF  EASEMENTS. 

should  cease  by  the  determination  of  the  estate  tail ;  but  the 
court  did  not  say  that  such  a  unity  of  seisin  would  cause  the 
permanent  extinction  of  the  easement.  In  the  same  way,  it  is 
presumed,  an  easement  would  not  be  destroyed  if  one  tenement 
were  held  in  fee  and  the  other  merely  for  life.  And  this  is 
well  settled  in  the  American  courts. 

Therefore,  where  the  owner  of  the  servient  tenement  in 
fee,  over  which  a  right  of  way  existed,  purchased  the  domi- 
nant tenement  as  trustee  for  the  use  of  the  wife  of  the  owner 
of  the  dominant  tenement,  for  her  life,  with  remainder  to  her 
children,  it  was  held  that  such  purchase  was  no  extinguish- 
ment of  the  right  of  way,  nor  even  a  suspension  of  it,  during 
the  life  of  the  wife.^ 

Unity  of  seisin  for  estates  in  fee  will  in  every  case  cause 
Unit}' of  easements  to  be  extinguished,  and  it  matters  not 
possession     ^i^j^^  there  has  been  no  unitv  of  possession  and  en- 

and  enjoy-     .  . 

mentnot     joyment^  as,   for  instance,  that   one    tenement  has 
been  in  possession  of  a  tenant  during  the  whole  pe- 
riod   of   unity,  for  notwithstanding  that,  extinction  will   be 
effected.* 

3.  The  next  mode  by  which  easements  may  be  extinguished 
Extinction  is  by  the  act  of  the  owner,  as  by  release,  that  is,  by 
of  the  ^'^'^  a  re-grant  of  the  right  by  the  dominant  to  the  ser- 
owner.  vient  Owner.  A  release  may  be  either  actual  or  im- 
and  aban-  plied,  but  if  actual,  it  can  be  effected  only  by  deed. 
donment.  j^  -g  ^^^  ^  comuion  thing  to  hear  of  an  implied  re- 
lease of  an  easement,  but  abandonment  of  an  easement  is  fre- 
quently met  with,  whereas  these  expressions  appear  to  be 
synonymous,  for,  in  truth,  abandonment  of  an  easement  ex- 
tinguishes the  right  only  when  a  release  can  be  implied  from 
the  abandonment  and  the  surrounding  circumstances.  Thus, 
Mr.  Justice  Willes  said :    "  I  do  not  think  that  this  court 

1  Pearce  v.  McClenaghan,  5  Rich.  L.  178.  Therefore  an  agreement  by 
a  tenant  for  years  to  abandon  an  easement  cannot  bind  the  reversioner, 
unless  he  be  a  party  to  it,  or  it  be  made  with  his  acquiescence.  Glenn 
V.  Davis,  35  Md.  208.  And  so  of  a  non-use  by  a  mere  tenant  for  life. 
Browne  v.  Trustees  of  the  M.  E.  Church,  37  Md.  109. 

^  Buckby  v.  Coles,  5  Taunt,  at  pp.  315,  316. 


EASEMENTS  GENERALLY.  461 

means  to  laj'^  it  down  that  there  can  be  an  abandonment  of  a 
prescriptive  easement  like  this  without  a  deed  or  evidence 
from  which  the  jury  can  presume  a  release  of  it  "  ;  "  and  again, 
in  the  case  of  Regina  v.  Chorley,*  the  court  said :  "  The 
learned  judge  appears  to  have  proceeded  on  the  ground  that 
as  twenty  years'  user,  in  the  absence  of  an  express  grant, 
would  have  been  necessary  for  the  acquisition  of  the  right,  so 
twenty  years'  cesser  of  the  use,  in  the  absence  of  any  express 
release,  was  necessary  for  its  loss.  But  we  apprehend  that  as 
an  express  release  of  the  easement  would  destroy  it  any  mo- 
ment, so  the  cesser  of  use,  coupled  with  any  act  clearly  indic- 
ative of  an  intention  to  abandon  the  right,  would  have  the 
same  effect  without  any  reference  to  time."  From  this  it  is 
apparent  that  the  only  way  in  which  an  easement  can  be  ex- 
tinguished by  the  act  of  the  parties  interested  is  by  release, 
actual  or  presumed ;  that  abandonment  will  not  have  that 
effect  unless  a  release  can  be  implied  from  that  and  the  sur- 
rounding circumstances  ;  and  that  when  an  easement  is  spoken 
of  as  having  been  lost  by  abandonment,  it  is  intended  that 
the  circumstance  are  such  that  a  release  can  be  presumed." 
But  rights  by  dedication  may  be  lost  by  adverse  iiser,  or  aban- 
donment,^ as  well  as  rights  obtained  by  prescription. 

Non-user  is  generally  the  principal  evidence  of  abandon- 
ment of  an  easement,  but  non-user  is  not  by  itself   vr 

'  J  JNon-user 

conclusive  evidence  that  the  right  is  abandoned,  for   alone  in- 
it  may  be  explained  by,  and  must  be  considered  with,    evidence  of 
the  surrounding  circumstances ;  it  must,  moreover, 
always  be  a  question  as  to  the  intention  with  which  the  user 
was  abandoned.^     Thus  non-user  may  be  explained  by  show- 
ing that  the  owner  of  an  easement  had  no  occasion  to  use  it, 

«  Lowell  V.  Smith,  3  C.  B.  N.  S.  at  p.  127.  See,  also,  Bower  v.  Hill, 
2  Biag.  N.  C.  339 ;  5  L.  J.  N.  S.  C.  P.  77. 

6  12  Q.  B.  at  p.  518. 

=  As  to  rights  to  light  and  other  easements  of  a  negative  character,  see 
post,  p.  474. 

1  Baldwin  v.  City  of  Buffalo,  29  Barb.  396;  Callaway  Co.  v.  Nolley,  31 
Mo,  393;  Alves  v.  Henderson,  16  B.  Mon.  131  ;  Knight  v.  Heaton,  22  Vt. 
480;  Commissioners  v.  Taylor,  2  Bay,  292. 

2  Jamaica  Pond  Aqueduct  v.  Chandler,  121  Mass.  3. 


462      EXTINCTION,    SUSPENSION,   AND   REVIVAL   OF  EASEMENTS. 

he  having  other  and  more  convenient  means  of  enjoying  his 
land  than  by  using  his  easement.**  On  this  ground  it  has  been 
held  that  a  right  of  way  along  a  stream  is  not  lost  if  the 
owner  of  the  right  allows  a  part  of  the  stream  to  become 
filled  with  mud,  even  though  it  remains  impassable  for  six- 
teen years,  for  the  mud  may  be  removed  if  the  way  is  re- 
quired.* So  if  an  easement  to  appropriate  the  water  of  a 
natural  stream  in  a  particular  way,  as  to  turn  it  by  a  dam  to 
carry  a  mill,  has  been  gained  by  prescription,  a  short  cessa- 
tion of  the  use  caused  by  the  burning  of  the  mill  will  not 
destroy  the  right  if  the  mill  is  rebuilt  and  the  enjoyment 
resumed  within  a  reasonable  time  afterwards.^  So  also  it  was 
held  that  non-user  till  the  year  1810  of  a  right  of  access  to 
mines  reserved  in  a  grant  of  land,  dated  1704,  was  not  by  it- 
self sufficient  ground  for  presuming  that  the  right  had  been 
released.  Adverse  possession,  coupled  with  such  non-user, 
might  have  raised  a  presumption  of  release.-^ 

If  non-user  be  accompanied  by  circumstances  which  cleai'ly 
Tj  ,  g  show  an  intention  of  not  resuming  the  user  of  an 
when  pre-  easement,  a  presumption  of  a  release  will  generally 
cessation  be  implied,  and  the  easement  will  be  lost ;  but  as  the 
0  user.  intention  of  not  resuming  the  user  has  to  be  shown 
from  the  surrounding  circumstances,  and  from  the  acts  of  the 
party  presumed  to  have  released  his  right,  it  is  frequently  a 
question  of  some  nicety  whether  the  circumstances  are  such 
that  the  presumption  can  be  made.  It  seems,  however,  not 
to  be  so  much  the  actual  intention  of  the  owner  of  the  ease- 
ment that  has  to  be  taken  into  consideration,  as  the  effect 
which  his  acts  and  the  accompanying  circumstances  produce 
upon  the  mind  of  other  and  reasonable  people,  for  in  many 
cases  an  owner  of  an  easement  at  the  time  he  ceases  to  use 

fi  Ward  V.  Ward,  7  Exch.  838;  21  L.  J.  Exch.  334;  Crossley  &  Sons 
(Limited)  v.  Liglitowler,  L.  R.  3  Eq.  279;  2  Ch.  App.  478  ;  Mason  v. 
Hill,  5  B.  &  Ad.  at  p.  16;  Darling  v,.  Clue,  4  F.  &  F.  329;  Cook  v.  Mayor 
of  Bath,  L.  R.  6  Eq.  17  7. 

«  Bower  v.  Hill,  1  Bing.  N.  C.  549  ;  Hale  v.  Oldroyd,  14  M.  &  W.  789; 
15  L.  J.  Exch.  4. 

1  McLean  v.  Davis,  6  Allen  (N.  B.),  266  (1865). 

/  Seaman  v.  Vawdrey,  16  Ves.  390. 


EASEMENTS  GENERALLY.  463 

it  has  no  particular  intention  on  the  subject  of  abandoning 
his  right ;  it  may  be  that  the  easement  is  not  at  the  time  re- 
quired, and  he  does  not  for  a  moment  consider  whether  he 
■will  at  any  future  time  desire  to  resume  its  use,  but  ceases  to 
use  it  simply  because  he  does  not  want  it  at  the  moment ;  his 
acts  may  nevertheless  induce  other  persons,  including  the  ser- 
vient owner,  to  suppose  that  he  means  to  abandon  his  ease- 
ment entirely,  and  never  to  resume  its  use.  In  the  case  of 
Moore  V.  Rawson  "  the  facts  were,  that  the  plaintiff's  predeces- 
sors had  been  owners  of  a  building  formerly  used  as  a  weav- 
er's shop,  in  which  were  ancient  lights,  and  that  about  seven- 
teen years  before  the  action  this  building  was  pulled  down, 
and  in  its  stead  a  stable  erected,  having  a  blank  wall  on  the 
spot  where  the  ancient  lights  had  been.  About  three  years 
before  the  action,  and  while  the  plaintiff's  stable  remained  as 
it  had  been  built,  the  defendant  erected  a  building  next  to 
the  blank  wall,  and  the  plaintiff  thereupon  opened  a  window 
in  the  blank  wall  in  the  same  place  where  there  had  for- 
merly been  a  window  in  the  old  shop,  and  the  action  was 
brought  for  obstruction  of  that  window  :  it  was  contended 
that  the  non-user  was  not  sufficient  to  warrant  the  presump- 
tion of  a  release  of  the  right  to  have  the  light  uninterrupted ; 
but  it  was  held  that  the  easement  was  lost,  and  Abbott,  C.  J., 
said  that  it  seemed  to  him  that  if  a  person  entitled  to  ancient 
lights  pulls  down  his  house  and  erects  a  blank  wall  in  the 
place  of  a  wall  in  which  there  had  been  windows,  and  suffers 
that  blank  wall  to  remain  for  a  considerable  period  of  time,  it 
lies  upon  him  at  least  to  show  that  at  the  time  when  he  so 
erected  the  blank  wall,  and  thus  apparently  abandoned  the 
windows  which  gave  light  and  air  to  his  house,  that  was  not 
a  perpetual  but  a  temporary  abandonment  of  the  enjoyment, 
and  that  he  intended  to  resume  the  enjoyment  of  those  ad- 
vantages within  a  reasonable  period  of  time.  He  thought 
the  burden  of  showing  that  laid  on  the  party  who  had  discon- 
tinued the  use  of  the  light ;  and,  he  added,  that  by  building 

ff  3  B.  &  C.  332;  3  L.  J.  K.  B.  32  ;  Drewitt  v.  Sheard,  7  C.  &  P.  465  ; 
Lawrence  v.  Obee,  3  Camp.  514  ;  Cook  v.  Mayor  of  Bath,  L.  R.  6  Eq. 
177. 


464       EXTINCTION,    SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

the  blank  wall,  the  plaintiff  might  have  induced  another  per- 
son to  become  the  purchaser  of  the  adjoining  ground  for 
building  purposes,  and  it  would  be  most  unjust  that  he  should 
afterwards  prevent  such  a  person  from  carrying  those  pur- 
poses into  effect. 

It  sometimes  happens  that  there  is  no  other  circumstance 
Cases  in  than  non-user  for  a  particular  time  to  determine  the 
which  non-   question  of  abandonment.!     j^^  such  an  event  the 

user  IS  the  ... 

only  evi-  duration  of  the  non-user  is  the  principal  guide  upon 
abandon-  whicli  reliance  must  be  placed,  but  this  must  be  con- 
'"^°*'  sidered  not  by  itself  but  in  conjunction  with  the  nat- 

ure of  the  easement  in  dispute,  for  non-user  of  one  descrip- 
tion of  easement  for  a  length  of  time  may  lead  to  a  very  dis- 
similar conclusion  from  non-user  of  an  easement  of  a  different 
character :  thus,  non-user  of  a  right  of  way  for  twenty  years 
may  raise  a  fair  presumption  that  the  right  has  been  aban- 
doned, whereas  a  case  was  noticed  above  in  which  it  was  held 
that  non-user  for  one  hundred  and  six  years  did  not  lead  to 
the  same  presumption. 

That  an  easement  acquired  bi/  deed  will  not  be  lost  by  mere 
non-user,  for  any  length  of  time  is  familiar  law  in  the  Ameri- 
can courts.^  But  it  is  equally  well  settled  that  a  non-user  for 
more  than  twenty  years,  during  all  which  time  the  servient  es- 
tate is  in  the  adverse  use  and  possession  of  another,  claiming 

1  See  Rexford  v.  Marquis,  7  Lans.  249.  And  it  is  a  question  of  fact  for 
the  jury  whether  the  party  has  abandoned  his  right.  Parkins  v.  Dunham, 
3  Strob.  224.  The  intent  to  abandon  is  material  to  be  found  as  a  fact. 
Jamaica  Pond  Aqueduct  v.  Chandler,  121  Mass.  3.  Upon  the  question 
•whether  a  right  of  way  had  been  abandoned,  evidence  is  admissible  against 
the  plaintiff  claiming  the  easement,  that  his  grantor  for  more  than  twenty 
years  previous  orally  relinquished  to  the  owner  of  the  servient  tenement 
all  his  right  to  the  easement,  and  afterwards  ceased  to  use  it.  Warshauer 
V.  Randall,  109  Mass.  586. 

2  White  V.  Crawford,  10  Mass.  183;  Smyles  v.  Hastings,  24  Barb.  44; 
22  N.  Y.  217;  Jewett  v.  Jewett,  16  Barb.  150;  Arnold  v.  Stevens,  24 
Pick.  106;  Bannon  v.  Angier,  2  Allen,  128;  Jennison  v.  Walker,  11  Gray, 
425;  Carlisle  v.  Cooper,  4  C.  E.  Green,  256  ;  6  lb.  576  ;  Barnes  v.  Lloyd, 
112  Mass.  224;  Owen  v.  Field,  102  Mass.  114;  Barlow  v.  Chicago,  &c. 
Railroad  Co.  29  Iowa,  276;  Noll  v.  The  Dubuque,  &c.  Railroad  Co.  32 
Iowa,  66. 


EASEMENTS  GENERALLY.  465 

an  absolute  fee  therein,  totally  inconsistent  with  the  enjoy- 
ment of  the  easement,  will  work  an  extinguishment  of  the 
easement.^  It  is  not  easy  to  see  why  an  easement  once  fully 
acquired,  though  solely  by  long  use,  should  be  lost  by  mere 
non-user,  any  more  than  if  acquired  by  deed.  The  long  use 
supposes  a  grant  —  condusivelt/  supposes  a  grant ;  and  if  so, 
why  is  not  the  title  as  good,  and  as  unaffected  by  mere  dis- 
use, as  if  the  grant  were  actually  produced.  In  either  case  the 
right  is  perfect.  The  non-use  in  the  one  case  —  that  of  pre- 
scription —  might  be  entitled  to  some  weight  upon  the  ques- 
tion whether  the  prior  long  use  was  adverse  or  only  permis- 
sive, and  therefore  might  have  some  tendency  to  show  that 
.no  right  had  ever  been  acquired.  But,  granting  that  it  had 
once  been  fully  and  completely  gained  by  prescription,  it 
seems  difficult  to  draw  a  satisfactory  distinction  between  the 
two  cases. 2 

It  has  been  thought  sometimes  that  as  a  grant  of  an  ease- 
ment cannot  be  presumed  unless  user  has  been  con- 
tinued uninterruptedly  for  twenty  years  at  least,  so   ment  pre- 
also  that  nothing  short  of  twenty  years'  non-user  can    after  non- 
raise  a  presumption  of  a  release  of  an  easement,''  but   i^^^lu'^ 
that  does  not  appear  to  be  a  correct  notion,  for  Lord   twenty 
Denman,  C.  J.,  in  delivering  the  judgment  of  the 
Court  of  Queen's  Bench  in  the  case  of  Regina  v.  Chorley,' 
said  :  "  The  learned  judge  appears  to  have  proceeded  on  the 
ground  that  as  twenty  years'  user  in  the  absence  of  an  express 
grant  would  have  been  necessary  for  the  acquisition  of   the 
right,  so  twenty  years'  cesser  of  the  use  in  the  absence  of  any 
express  release  was  necessary  for  its  loss.     But  we  apprehend 
that  as  an  express  release  of  the  easement  would  destroy  it 

1  Chandler  v.  Jamaica  Pond  Aqueduct,  125  Mass.  549  ;  Barnes  v.  Lloyd, 
112  Mass.  224;  Owen  v.  Field,  102  Mass.  90;  Jennison  v.  Walker,  11 
Gray,  423. 

^  See  Veghte  v.  Earitan,  &c.  Co.  4  C.  E.  Green,  156j  Tracy  v.  Atherton, 
36  Vt.  503;  Perrin  v.  Garfield,  37  Vt.  304. 

^  Drewett  v.  Sheard,  7  C.  &  P.  465.     And  see  Emerson  v.  Wiley,  10 
Pick.   310;    Corning    v.   Gould,   16   Wend.   535;    Cuthbert    v.   Lawton,    3. 
McCord,  194;  Wright  v.  Freeman,  6  H.  &  J.  477. 

'  12  Q.  B.  at  p.  519. 

30 


466      EXTINCTION,   SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

any  moment,  so  the  cesser  of  use,  coupled  with  any  act  clearly 
indicative  of  an  intention  to  abandon  the  right,  would  have 

the  same  effect  without  any  reference  to  time It  is 

not  so  much  the  duration  of  the  cesser  as  the  nature  of  the 
act  done  by  the  grantee  of  the  easement  or  of  the  adverse  act 
acquiesced  in  by  him,  and  the  intention  in  him  which  either 
the  one  or  the  other  indicates,  which  are  material  for  the  con- 
sideration of  the  jury.  The  period  of  time  is  only  material 
as  one  element  from  which  the  grantee's  intention  to  retain 
or  abandon  his  easement  may  be  inferred  against  him ;  and 
what  period  may  be  sufficient  in  any  particular  case  must  de- 
pend on  all  the  accompanying  circumstances."  If  there  are 
no  circumstances  to  aid  the  presumption  of  a  release  or  the 
reverse,  doubtless  no  presumption  of  a  release  ought  to  be 
made  until  non-user  has  continued  for  twenty  years,  but,  as  it 
was  said  above,  there  are  many  cases  in  which  this  would  not 
even  be  sufficient,  for  the  duration  of  the  non-user  must  al- 
ways be  considered  in  conjunction  with  the  nature  of  the 
easement  about  which  the  question  is  raised. 

Release  or  abandonment  of  an  easement  can  of  course  only 
occur  after  the  easement  has  been  legallv  acquired, 

Release,  or  .  .  o       j  ± 

abandon-  that  IS,  after  it  has  actually  become  an  easement, 
when'pos-  ^nd  it  has  been  pointed  out  in  a  previous  chapter 
sibie.  ^ijg^i-  g^j^  easement  cannot  be  acquired,  that  is,  it  can- 

not actually  become  an  easement  under  the  Prescription  Act, 
unless  there  has  been  uninterrupted  enjoyment  for  the  full 
period  of  twenty  years,  and  that  enjoyment  has  immediately 
preceded  some  action  or  suit.''  Until  that  action  or  suit  has 
been  commenced,  therefore,  no  question  of  abandonment  or 
release  can  arise,  even  though  the  enjoyment  may  have  con- 
tinued uninterruptedly  for  a  hundred  years,  if  the  easement 
can  only  be  claimed  under  the  Prescription  Act ;  the  only 
question  that  can  then  be  raised  is,  whether  the  easement  has 
been  acquired,  and  to  disprove  such  acquisition  it  is  not  neces- 
sary to  show  non-user  for  twenty  or  any  greater  number  of 
years,  nor  the  intention  of  the  quasi-dovainant  owner  when  he 
ceased  to  use  the  easement,  as  it  is  in  cases  where  the  ques- 
'  Ante,  chapter  II.  p.  147,     See,  also,  "Non-user,"  p.  177. 


EASEMENTS  GENERALLY.  467 

tion  relates  to  release  or  abandonment,  but  it  is  merely  requi- 
site to  show  that  there  has  been  non-user  during  the  last  year 
before  the  action,  irrespectively  of  the  intention  with  which 
the  user  was  given  up,  for  that  is  sufficient  to  prevent  an 
easement  being  acquired.  If,  however,  the  easement  is 
claimed  by  express  grant  or  by  prescription  at  common  law, 
no  action  is  required  to  perfect  the  title,  and  the  question  of 
abandonment  can  in  no  way  be  influenced  by  the  fact  that  no 
action  has  ever  been  brought.  There  has  sometimes  been  a 
tendency  to  confuse  loss  by  abandonment,  evidenced  by  non- 
user,  with  failure  of  acquisition  of  an  easement  by  reason  of 
breach  of  continuity  of  enjoyment. 

As  cessation  of  user  must  always  be  considered  in  connec- 
tion with  surrounding  circumstances  to  ascertain  Xemporarj 
whether  a  release  of  an  easement  may  be  presumed,  f^gug'^emi 
so  surrounding  circumstances  may  be  given  in  evi-  ^^ser. 
dence  to  explain  away  the  effect  of  long-continued  non-user, 
and  to  show  that  the  easement  has  not  been  permanently 
abandoned.  Thus  it  may  be  shown  that  the  cessation  of  user 
occurred  in  consequence  of  an  agreement  whereby  the  domi- 
nant owner  consented  to  give  up  his  right  temporarily,  as  in 
the  case  of  Davis  v.  Morgan,*  in  which  a  mill-owner  had 
granted  to  another  mill-owner  higher  up  a  stream  the  use  of 
all  the  water  of  the  stream  for  a  term  of  ninety-nine  years  for 
a  certain  premium  ;  at  the  expiration  of  that  term  the  grantor 
became  entitled  to  have  the  stream  restored  to  its  former  con- 
dition, yet  although  the  grantor's  mill  had  been  then  long 
pulled  down,  it  having  become  useless  from  want  of  the  water, 
it  was  considered  that  the  right  was  not  lost  by  abandonment, 
and  that  he  was  still  entitled  to  rent  for  the  use  of  the  water 
by  the  grantee  after  the  expiration  of  the  term. 

So,  also,  it  may  be  shown  that  the  cessation  of  user  oc- 
curred in  consequence  of  the  temporary  substitution  Substitu- 
of  another  and  a  different  mode  of  enjoyment  of  the  me°hod°or 
easement  for  the  sake  of  convenience,  on  proof  of  enjoyment. 
which  the  presumption  of  a  release  will  be  rebutted.  Thus, 
where  the  owner  of  an  old  pond,  which  was  supplied  with 
M  B.  &  C.  8 ;  Lovell  v.  Smith,  3  C.  B.  N.  S.  120. 


468      EXTINCTION,   SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

water  from  a  well,  diverted  the  water  to  three  new  ponds 
which  he  made,  and  suffered  the  old  pond  to  become  filled 
with  mud  and  useless,  it  was  held  that  as  the  use  of  the  old 
pond  was  discontinued  only  because  the  owner  obtained  the 
same,  or  a  greater,  advantage  from  the  use  of  the  three  new 
ponds,  his  easement  for  the  old  pond  was  not  lost  by  aban- 
donment.' 

It  should  be  noticed  in  this  place  that  a  dominant  owner 
p.  ,  always  has  the  power  to  abandon  his  easement  if  he 

dominant  pleascs.  It  may  seem  that  this  is  so  self-evident  a 
abandon  fact  that  it  is  necdlcss  to  refer  to  it,  but  it  has  been 
easements.  gQj^^gjjded  that  if  the  user  of  an  easement  is  bene- 
ficial to  the  servient  owner  as  well  as  to  the  dominant  owner, 
the  former  can  acquire  a  sort  of  counter-easement  that  the 
dominant  owner  shall  not  give  up  the  user,  so  that  the  ser- 
vient owner  may  not  lose  the  advantage  he  has  been  accus- 
tomed to  enjoy.  This  point  arose  in  the  case  of  Mason  v.  The 
Shrewsbui^  and  Hereford  Railway  Company."*  The  defend- 
ants or  their  predecessors  had  diverted  a  stream  to  a  canal 
under  the  power  of  an  act  of  parliament.  This  diversion 
continued  for  many  years  and,  during  that  time,  the  old  bed 
of  the  stream  partly  filled  up,  so  that  on  the  defendants  do- 
ing away  with  the  canal  and  restoring  the  stream  to  its  old 
course  the  plaintiff's  land  was  flooded.  Cockburn,  C.  J.,  held 
that  the  plaintiff  could  not  recover,  for  that  it  is  of  the  essence 
of  an  easement  that  it  exists  for  the  benefit  of  the  dominant 
tenement  alone,  and  being  in  its  very  nature  a  right  created 
for  the  benefit  of  the  dominant  owner,  its  exercise  by  him 
cannot  operate  to  create  a  new  right  for  the  benefit  of  the 
servient  owner  ;  and,  like  any  other  right,  its  exercise  may  be 
discontinued  if  it  becomes  onerous  or  ceases  to  be  beneficial  to 
the  party  entitled  to  it. 

i  Hale  V.  Oldroyd,  14  M.  &  W.  789;  15  L.  J.  Exch.  4  ;  Lovell  v.  Sniith, 
3  C.  B.  N.  S.  120  ;  Reignolds  v.  Edwards,  Willes,  282 ;  Saunders  r.  New- 
man, 1  B.  &  Aid.  258,  And  see  Hayford  v.  Spokesfield,  100  Mass.  401; 
Grain  v.  Fox,  16  Barb.  184. 

'»  L.  R.  6  Q.  B.  578 ;  40  L.  J.  Q.  B.  293. 


EASEMENTS  GENERALLY.  469 

A  few  remarks  are  demanded  in  this  chapter  rela- 
tive to  revocation  of  licenses. 

In  the  early  part  of  this  work  the  distinction  was  explained 
between  an  easement  and  a  license  in  the  nature  of  an  ease- 
ment, and  it  was  shown  that  a  mere  permission  to  do  an  act, 
which  would  without  permission  constitute  a  trespass,  is  a 
license.  It  has  hitherto  been  unnecessary  to  make  frequent 
reference  to  the  subject  of  licenses,  for  there  is  little  to  be 
said  about  them  after  their  nature  and  mode  of  acquisition  is 
explained  ;  but  it  is  necessary  in  this  place  to  show  how  li- 
censes may  be  revoked,  and  also  in  what  cases  they  have  been 
held  to  be  irrevocable. 

As  a  general  rule,  licenses  are  revocable  at  the  will  of  the 
grantor,  for  no  interest  in  land  is  conferred  on  the  Revocable 
grantee  by  the  gra.nt  of  a  license."  The  whole  ef-  ocabieTi-" 
feet  of  a  license  is  to  render  an  act  justifiable  which  censes. 
without  that  license  would  have  been  wrong,  and  if  the  li- 
cense is  revoked,  the  effect  of  the  revocation  is  merely  to  re- 
move the  permission  or  justification,  so  that  the  act  again 
becomes  unlawful.  There  are  cases,  however,  in  which  fehe 
law  has  determined  that  licenses  shall  not  be  revoked,  either 
on  account  of  the  injustice  which  would  be  done  to  the 
grantee,  or  on  account  of  the  circumstances  accompanying 
the  grant  of  the  license.  This  has  been  explained  in  the  case 
of  Wood  V.  Leadbitter,"  a  case  in  which  the  subject  of  li- 
censes received  much  consideration.  The  court  there  said  : 
"  A  mere  license  is  revocable,  but  that  which  is  called  a  li- 
cense is  often  something  more  than  a  license ;  it  often  com- 
prises, or  is  connected  with,  a  grant,  and  then  the  party  who 
has  given  it,  cannot  in  general  revoke  it  so  as  to  defeat  his 
grant  to  which  it  was  incident.  It  may  further  be  observed, 
that  a  license  under  seal  (provided  it  be  a  mere  license)  is  as 
revocable  as  a  license  by  parol ;  and,  on  the  other  hand,  a 

"  Though  this  is  so,  it  has  been  said  that  reasonable  notice  of  revocation 
should  be  given,  especially  if  it  is  necessary  for  the  licensee  to  do  some- 
thing, as  to  remove  goods  or  alter  the  direction  of  pipes  or  bell-wires  on 
revocation  of  the  license.     Mellor  v.  Watkins,  L.  R.  9  Q.  B.  400. 

"  13  M.  &  W.  at  p.  844 ;  14  L.  J.  Exch.  at  p.  164.  • 


470      EXTINCTION,   SUSPENSION,   AND   REVIVAL   OF    EASEMENTS. 

license  by  parol,  coupled  with  a  grant,  is  as  irrevocable  as  a 
license  by  deed,  provided  only  that  the  grant  is  of  a  nature 
capable  of  being  made  by  parol.  But  where  there  is  a  license 
by  parol,  coupled  with  a  parol  grant,  or  pretended  grant,  of 
something  which  is  incapable  of  being  granted  otherwise  than 
by  deed,  there  the  license  is  a  mere  license ;  it  is  not  an  inci- 
dent to  a  valid  grant,  and  it  is  therefore  revocable."  So,  a 
deed  which  granted  a  liberty,  license,  power,  and  authority  to 
dig  for  tin,  and  to  dispose  of  the  tin  obtained,  on  certain  terms 
for  a  period  of  twenty-one  years,  was  described  by  Abbott, 
C.  J.,  as  granting  a  license  only  to  take  the  ore  which  should 
be  found,  and  not  conferring  any  estate  or  interest  in  the  rest 
of  the  soil ;  but  the  license  was  also  said  to  be  irrevocable  on 
account  of  its  carrying  an  interest  in  the  ore.^  This  is  prob- 
ably on  the  ground  that  the  license  is  coupled  with  an  inter- 
est in  personal  property,  or  in  property  which  is  to  be  made 
personal  by  the  licensee  ;  for  where  this  is  done,  as  where 
trees  have  been  cut  by  the  licensee  on  land  of  the  licenser 
under  an  oral  purchase  thereof,  the  licensee  has  an  irrevocable 
license  to  enter  and  remove  the  property  in  which  he  had  thus 
d,uqaired  an  interest.^  So,  also,  where  the  grantee  of  a  right 
of  way  from  his  coal  pit,  who  had  constructed  a  wagon-way, 
agreed  that  another  coal-owner  should  also  use  the  wagon- 
way,  the  latter  acquired  a  license  only  to  use  the  way  as  the 
former  had  a  right  merely  to  carry  his  own  coals ;  but,  sub- 
sequently, the  owner  of  the  soil  granted  by  deed  to  the  sec- 
ond coal-owner  a  right  of  way  over  the  same  road  and  wagon- 
way  where  he  previously  had  a  mere  license  to  pass,  and 
afterwards  the  owner  of  the  soil  became  owner  of  the  first 
grantee's  coal-pits,  and  so  of  his  wagon-way,  and  it  was  de- 
cided that  though,  as  between  the  two  grantees  the  second 
coal-owner  had  merely  a  license  to  use  the  wagon-way,  yet 
that  the  grantor,  who  had  become  assignee  of  his  grantee, 
could  not  revoke  the  license  to  use  the  wagon-way,  for  by  so 
doing  he  would  defeat  his  own  grant.^ 

P  Doe  V.  Wood,  2  B.  &  Aid.  at  p.  738. 

1  See  Nettleton  v.  Sikes,  8  Met.  34  ;  Claflin  v.  Carpenter,  4  Met.  580  ; 
Giles  V.  Sinionds,  15  Gray,  441. 
9  Newmarsh  i^.  Brandling,  3  Swan.  99. 


EASEMENTS  GENERALLY.  471 

A  license  is  also  irrevocable  if  the  licensee,  acting  upon  the 
permission  granted,  has  executed  a  work  of  a  perma-  Execution 
nent  character,  and  has  incurred  expense  in  its  execu-  of  aperma- 
tion.i     This  rule  of  law  appears  to  be  based  upon   "^""^  ^".^ 

.       .  .      expensive 

the  injustice  which  would  be  inflicted  upon  the  li-   character. 

censee  if,  after  he  had  laid  out  money  and  had  executed  a 
permanent  work,  the  licenser  were  permitted  to  revoke  his 
license  and  make  him  destroy  his  work,  and  so  lose  the  money 
expended,  or  if  he  were  allowed  to  treat  him  as  a  wrong-doer 
and  recover  damages  for  the  very  act  for  which  he  gave  permis- 
sion. Thus,  in  Winter  v.  Brockwell''  the  action  was  brought 
for  inclosing  an  area  through  which  the  plaintiff  was  entitled 
to  receive  light  and  air,  and  it  appeared  in  evidence  that  the 
area  belonged  to  the  defendant,  and  that  he  erected  the  in- 
closure  with  the  express  consent  and  approbation  of  the  plain- 
tiff, and  it  was  held  that  after  that  consent  to  the  erection 
the  plaintiff  could  not  maintain  the  action.  Lord  Ellenbor- 
ough,  C.  J.,  said  that  the  point  was  new  to  him  when  it  oc- 
curred at  the  trial,  but  he  then  thought  it  very  unreasonable, 
that  after  a  party  had  been  led  to  incur  expense  in  conse- 
quence of  having  obtained  a  license  from  another  to  do  an 
act,  and  the  license  had  been  acted  upon,  the  other  should  be 
permitted  to  recall  his  license  and  treat  the  first  as  a  tres- 
passer for  having  done  that  very  act.  •  He  also  said  that  he 
had  afterwards  looked  into  books  upon  the  point,  and  found 
himself  justified  by  the  case  of  Web  v.  Paternoster  (Palmer's 
Rep.  p.  71),  where  Haughton,  J.,  lays  down  the  rule  that  a 
license  executed  is  not  countermandable,  but  only  when  it  is 
executory. 

1  See  Rawson  v.  Bell,  46  Ga.  19  ;  Miller  v.  Brown,  83  Ohio  St.  547. 

>•  8  East,  308  ;  Liggins  v.  Inge,  7  Bing.  682;  9  L.  J.  C.  P.  202;  Wallis 
V.  Harrison,  4  M.  &  W.  538;  8  L.  J.  N.  S.  Exch.  44;  Rochdale  Canal 
Co.  V.  King,  2  Sim.  N.  S.  78;  20  L.  J.  Ch.  675;  16  Beav.  630;  22  L.  J. 
Ch.  604;  Duke  of  Devonshire  v.  Eglin,  14  Beav.  530;  20  L.  J.  Ch.  495; 
Laird  v.  Birkenhead  Railway  Co.  John.  500;  29  L.  J.  Ch.  218;  Hervey  v. 
Smith,  22  Beav.  299 ;  Bankart  v.  Tennant,  L.  R.  10  Eq.  141 ;  Mold  v.  Wheat- 
croft,  27  Beav.  510;  29  L.  J.  Ch.  11. 


472      EXTINCTION,    SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 


IN    AMERICA, 

also,  it  is  now  generally  agreed  that  inasmuch  as  an  easement 
in  real  estate  cannot  be  created  except  by  actual  deed,  or  pre- 
scription, which  conclusively  presumes  a  grant,  a  parol  license, 
sufficient  in  terms  to  create  an  easement  if  in  a  deed,  is  re- 
vocable, although  executed  by  the  licensee  ;  ^  although  some 
early  cases  seem  not  to  have  given  full  force  to  this  view, 
when  the  license  has  been  executed.^ 

The  authorities  generally  referred  to  on  this  subject  show 
that  the  rule  sometimes  laid  down  in  the  books,  that  a  license 
executed  can  not  be  countermanded,  is  not  applicable  to  li- 
censes which,  if  given  by  deed,  would  create  an  easement ; 
but  only  to  licenses  which,  if  given  by  deed,  would  extinguish 
or  modify  an  easement.  They  also  show  that  the  distinction, 
sometimes  taken  in  the  books,  between  a  license  to  do  acts  on 
the  licensee's  own  land,  and  a  license  to  do  acts  on  the  licens- 
er's land  is  the  same  distinction  that  is  made  between  licenses 
which,  if  held  valid  would  create,  and  licenses  which  extin- 
guish or  modify  an  easement.  Generally,  if  not  always,  a 
license  which,  when  executed,  extinguishes  or  modifies  an 
easement,  is,  from  the  nature  of  the  case,  a  license  to  do  acts 
on  the  servient  estate,  the  estate  of  the  licensee.^ 

Thus,  in  Morse  v.  Copeland  ^  the  owner  of  a  mill-dam  and 
privilege  gave  the  owner  of  lands  above  flowed  thereby,  an 
oral  license  to  build  a  dam  on  his  (the  licensee's)  land,  and 

^  Morse  v.  Copeland,  2  Gray,  302;  Foster  v.  Browning,  4  R.  I.  47; 
Couch  V.  Burke,  2  Hill  S.  C.  534;  Hetfield  v.  Central  Railroad  Co.  3 
Dutch.  571;  Eggleston  v.  N.  Y.  Railroad  Co.  35  Barb.  162;  Pitman  v. 
Poor,  38  Me.  237;  Woodward  v.  Seeley,  11  111.  157;  Desloge  v.  Pearce,  38 
Mo.  588;  Wolfe  v.  Frost,  4  Sandf.  Ch.  72;  Den  v.  Baldwin,  1  Zab.  390, 
and  many  other  eases. 

2  See  Ricker  v.  Kelly,  1  Me.  117;  Clement  v.  Durgin,  5  Me.  9  ;  Wood- 
bury V.  Parshley,  7  N.  H.  237  ;  Androscoggin  Bridge  v.  Bragg,  16  N.  H. 
506;  Wilson  t'.  Chalfant,  15  Ohio,  248;  Occum  Man.  Co.  v.  Sprague  Man. 
Co.  34  Conn.  529;  Miller  v.  Brown,  33  Ohio  St.  547. 

8  See  Curtis  v.  Noonan,  10  Allen,  406. 

*2  Gray,  302.  And  see  Dyer  v.  Sanford,  9  Met.  395;  Dodge  v. 
McClintock,  47  N.  H.  386  ;  Veghte  v.  Raritan,  &c.  Co.  4  C.  E.  Green,  153; 
Houston  V.  Laffee,  46  N.  H.  505;  Duinneen  i'.  Rich,  22  Wis.  550. 


EASEMENTS  GENERALLY.  473 

also  to  dig  a  ditch  across  the  land  of  the  licenser,  to  drain  the 
water  from  part  of  the  licensee's  land  ;  and  under  this  license 
the  licensee  erected  the  dam  and  dug  the  ditch.  It  was  held 
that  the  licenser  could,  even  after  twenty  years,  revoke  the  li- 
cense to  dig  the  ditch  on  his  own  land,  but  could  not  revoke 
the  license  to  build  the  dam  on  the  licensee's  land. 

So  it  is  well  settled  that  a  license  to  a  person  to  build  a 
dam  on  the  licenser's  own  land,  for  the  purpose  of  raising  a 
head  of  water  to  work  a  mill  on  land  of  the  licensee,  is  revo- 
cable at  the  pleasure  of  the  licenser,  even  after  the  licensee 
has  erected  the  dam  ;  and  no  liability  thereby  arises  to  reim- 
burse the  licensee  for  the  expenses  incurred  by  him.^ 

In  like  manner,  if  a  landowner  orally  consents  that  a  per- 
son^^who  is  about  to  build  a  mill-dam  on  his  land  may  flow 
the  licenser's  land  with  his  pond,  and  the  licensee  thereupon 
erects  his  mill  and  dam,  the  licenser  may,  nevertheless,  revoke 
his  license.^ 

If  A.  orally  licenses  B.  to  erect  a  building  on  his  land,  with- 
out consideration,  and  B.  does  so,  such  license  is  revocable, 
notwithstanding  the  expense  B.  has  incurred,^  and  the  license 
would  terminate  with  the  licenser's  death  or  subsequent  con- 
veyance of  the  land. 

If  A.  orally  licenses  B.  to  lay  an  aqueduct  through  his 
land,  A.  may  revoke  the  license,  even  after  the  aqueduct  has 
been  laid,*  and  especially  after  the  same  has  decayed,  and 

1  See  Stevens  v.  Stevens,  11  Met.  251;  Cook  v.  Stearns,  11  Mass.  533; 
Mumford  v.  Whitney,  15  Wend.  380  ;  Carter  v.  Harlan,  6  Md.  20  ;  Hayes 
V.  Richardson,  1  Gill  &  J.  366. 

2  Wood  V.  Edes,  2  Allen,  578;  Bridges  v.  Purcell,  1  Dev.  &  Batt.  492; 
Foot  V.  N.  H.  and  Northampton  Co.  23  Conn.  225.  But  if  the  mill-owner 
had  a  right  by  statute  to  flood  the  licenser's  land,  and  he  orally  consented 
for  a  valuable  consideration  that  he  might  flow  upon  paying  a  certain  sum 
annually  as  damages,  that  license,  if  it  be  one,  could  not  be  revoked,  and 
a  higher  rate  claimed.     Seymour  v.  Carter,  2  Met.  520. 

8  Mason  v.  Holt,  1  Allen,  45  ;  Cheever  v.  Pearson,  16  Pick.  2G6  ;  Prince 
V.  Case,  10  Conn.  375.  And  see  Ruggles  v.  Lesure,  24  Pick.  187;  Harris 
V.  Gillingham,  6  N.  H.  9;  Seidensparger  v.  Spear,  17  Me.  123;  Carter  v. 
Harlan,  6  Md.  29;  Whitaker  v.  Cawthorne,  3  Dev.  389. 

4  Houston  V.  Laffee,  46  N.  H.  505. 


474      EXTINCTION,    SUSPENSION,    AND   REVIVAL   OF   EASEMENTS. 

the  licensee  has  enjoyed  the  full  benefit  of  his  first  expendi- 
ture. ^ 

So  of  a  verbal  license  to  pass  over  the  licenser's  grounds, 
and  although  the  licensee  has  exercised  the  right  for  eight  or 
ten  years  without  objection,  it  may  be  revoked,  and  he  would 
be  liable  in  trespass  for  passing  afterwards  ;  ^  so  of  a  license  to 
build  a  railroad  over  the  land  of  the  licenser.^ 

If  a  landowner  orally  licenses  another  to  cut  and  carry 
away  the  standing  trees  on  his  ground,  for  a  valuable  con- 
sideration, such  license  may  at  any  time  be  revoked  as  to  all 
trees  not  then  cut,  even  though  the  licensee  had  incurred  ex- 
pense in  preparing  to  act  upon  the  license.^ 

These  illustrations,  and  many  others  might  be  cited,  show 
that  the  language  of  the  learned  author  should  not  be  under- 
stood as  asserting  that  every  oral  license  is  irrevocable,  merely 
because  the  licensee  has  incurred  expenses  relying  upon  the 
continuance  of  the  license,  and  that  although  the  licenser  may 
not  have  an  action  against  the  licensee /or  what  he  has  done 
under  it,  before  revocation,  yet  he  may  be  forbidden  to  con- 
tinue such  acts  thereafter.  Some  courts,  however,  hold  that 
executed  licenses  become  binding  in  equity  upon  the  licenser, 
when  the  licensee  has  incurred  expense  on  the  faith  of  it.^ 

Unless  a  license  is  irrevocable  from  the  peculiar  circum- 
Revocation  stances  of  the  case,  it  may  be  revoked  at  any  time 
actoflhe*^  ^J  ^^®  grantor,  and  for  the  purpose  of  revocation  it 
grantor.  jg  jjot  necessary  that  he  should  expressly  counter- 
mand his  license,  but  it  must  be  taken  to  be  revoked  if  he 

1  Allen  V.  Fiske,  42  Vt.  462.  And  see  Carleton  v.  Redington,  21  N.  H. 
291 ;  Selden  v.  Delaware  and  Hudson  Canal  Co.  29  N.  Y.  634. 

2  Marston  v.  Gale,  24  N.  H.  176. 

8  Blaisdell  v.  Portsmouth,  Great  Falls  and  Conway  Railroad,  51  N.  H. 
483;  Miller  v.  Auburn  and  Syracuse  Railroad  Co.  6  Hill,  61. 

*  Giles  V.  Simonds,  15  Gray,  441  ;  Drake  r.  Wells,  11  Allen,  141;  Hill 
V.  Hill,  113  Mass.  103;  Hill  v.  Cutting,  113  Mass.  107;  Baker  v.  Wheeler, 
8  Wend.  505. 

5  See  2  Am.  Lead.  Cas.  578;  Rerick  v.  Kern,  14  S.  &  R.  267;  Lasy  v. 
Arnett,  33  Penn.  St.  169;  Snowden  v.  Wilas,  19  Ind.  14,  369;  Wicker- 
sham  V.  Orr,  9  Iowa,  260;  Beatty  v.  Gregory,  17  Iowa,  114;  Swartz  v. 
Swartz,  4  Barr,  358. 


EASEMENTS  GENERALLY.  475 

does  any  act  by  which  his  disinclination  to  the  continuation 
of  its  enjoyment  is  shown,  or  if  he  puts  it  out  of  his  power 
to  continue  the  permission.  Thus,  the  act  of  locking  a  gate 
across  a  way  may  operate  as  a  revocation  of  a  license  to  use 
the  way,*  and  if  an  owner  of  land  grants  another  person  li- 
cense to  put  hay  on  his  ground,  the  license  must  be  considered 
revoked  if  the  owner  lets  or  sells  the  land  to  a  third  person.' 
In  the  case  of  Wallis  v.  Harrison,"  Parke,  B.,  said,  that  if  the 
owner  of  land  grants  to  another  a  license  to  go  over  or  do  any 
act  upon  his  close,  and  then  conveys  away  the  close,  there  is 
an  end  to  that  license ;  for  the  license  is  an  authority  only 
with  respect  to  the  soil  of  the  grantor,  and  if  the  close  ceases 
to  be  his  soil  the  authority  is  instantly  gone.  Lord  Abinger, 
C.  B.,  also  in  the  same  case,  said,  that  a  mere  parol  license  to 
enjoy  an  easement  on  the  land  of  another,  does  not  bind  the 
grantor  after  he  has  transferred  his  interest  and  possession  in 
the  land  to  a  third  person.  He  added  that  he  never  heard  it 
supposed  that  if  a  man  out  of  kindness  to  a  neighbor  allowed 
him  to  pass  over  his  land,  the  transferee  of  that  land  is  bound 
to  do  so  likewise  ;  he  stated,  moreover,  that  it  is  not  necessary 
to  give  notice  of  the  transfer  of  the  land  in  order  to  termi- 
nate the  license,  for  a  person  is  bound  to  know  who  is  the 
owner  of  the  land  upon  which  he  does  that  whiah.  primd  facie 
is  a  trespass. 

The  difference  which  exists  between  easements  and  natural 
rights  as  to  suspension  and  extinction  being  under-  Revival  of 
stood,  it  is  next  to  be  ascertained  in  what  cases  these  amrna^-'^ 
rights  can  be  revived,  and  when  they  are  so  entirely  mai  rights. 
destroyed  as  to  render  their  revival  impossible  ;  and  it  may 
be  stated  generally  that  any  right  which  is  merely  suspended 
revives  when  the  cause  of  the  suspension  is  removed,  but  that 
any  right  which  is  altogether  extinguished  can  never  revive, 
though  a  similar  right  may  be  granted  at  any  time   subse- 

'  Hyde  v.  Graham,  1  H.  &  C.  593  ;  32  L.  J.  Exch.  27. 
«  Plummer  v.  Webb,   Noy's  Rep.  98;  Drake  v.  Wells,  11   Allen,  141; 
Judge  V.  Lowe,  Irish  R.  7  C.  L.  291. 

«  4  M.  &  W.  538;  8  L.  J.  N.  S.  Exch.  44. 


476      EXTINCTION,   SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

quent  to  the  extinguishment,  unless  prevented  by  the  cause 
of  the  previous  extinction.  Thus  natural  rights,  which  can 
be  suspended  only  and  not  extinguished  by  the  creation  of  an 
adverse  easement,  immediately  revive  if  the  easement  is  re- 
moved ;  and  so  it  is  presumed  they  would  revive  on  the  repeal 
of  an  act  of  parliament  by  which  they  had  been  previously 
suspended.  The  case  of  easements  is  the  same,  for  if  they 
be  merely  suspended  they  will  revive,  though  they  cannot  re- 
vive if  once  extinguished.  This  was  pointed  out  by  Tindal, 
C.  J.,  in  Bower  v.  Hill,^  in  which  the  court  held  that  the  fact 
of  severance  of  the  property  in  a  certain  inn  and  an  adjoin- 
ing yard  would  not  produce  a  presumption  of  release  of  a 
right  of  way  appurtenant  thereto,  for  that  there  was  evidence 
only  of  a  temporary  discontinuance  of  the  enjoyment,  or  at 
most  of  a  temporary  suspension  of  the  right  and  not  of  any 
extinguishment  of  it,  and  that  consequently  if  the  property 
in  the  dominant  tenement  was  reunited  at  any  time,  the  domi- 
nant owner  would  be  at  liberty  to  resume  the  user. 

The  different  effect  of  unity  of  seisin,  of  dominant  and 
servient  estates,  and  unity  of  possession,  merely  for  differ- 
ent estates  and  interests,  as  to  extinction  and  suspension  of 
easements,  has  been  pointed  out ;  if  there  has  been  unity  of 
possession  merely,  and  not  unity  of  seisin  for  estates  in  fee 
simple,  an  easement  which  has  been  thereby  suspended  will 
revive  on  severance  of  the  union,""  but  if  there  has  been  unity 
of  seisin  for  estates  in  fee  simple,  and  not  unity  of  possession 
merely,  all  easements  are  absolutely  extinguished,  and  will  not 
revive  on  partition  of  the  former  dominant  and  servient  es- 
tates, though  they  may  be  created  de  novo  if  the  servient 
owner  pleases,  and  if  proper  words  for  that  purpose  be  used 
in  the  deed  by  which  the  partition  is  effected.-^  When  ease- 
ments are  thus  recreated  they  are  in  fact  not  the  old  rights 

"  2  Bing.  N.  C.  339  ;  5  L.  J.  N.  S.  C.  P.  77;  James  v.  Plant,  4  A.  &  E. 
at  p.  762  ;  6  L.  J.  N.  S.  Exch.  260. 

«"  Thomas  v.  Thomas,  2  C,  M.  &  R.  34 ;  Simper  v.  Foley,  2  John.  &  H. 
555;  Whalley  v.  Thomson,  1  B.  &  P.  371. 

=^  Barlow  v.  Rhodes,  1  C.  &  M.  439  ;  2  L.  J.  N.  S.  Exch.  91 ;  Pearson  v. 
Spencer,  1  B.  &  S.  571;  Heigate  v.  Williams,  Noy's  Rep.  119. 


LIGHT.  477 

revived,  but  newly  created  servitudes,  and  the  means  by  which 
they  are  recreated  is  a  new  grant.  This  subject  was  fully  con- 
sidered in  an  earlier  chapter,  when  acquisition  by  means  of 
grant  was  discussed,  and  it  is  needless  again  to  describe  the 
forms  of  words  whereby  extinguished  easements  may  be  cre- 
ated afresh  on  partition  of  a  united  estate.^ 

Sect.  2.  —  On  Extinction,  Suspension,  and  Revival  of  Par- 
ticular Easemeyits. 

There  are  but  few  rules  of  law  relating  to  extinction,  sus- 
pension, and  revival  of  easements  which  have  reference  to 
those  particular  easements  which  have  been  specially  and  sep- 
arately considered  throughout  this  work,  viz.,  those  which 
have  relation  to  air,  light,  support,  water,  and  ways.  Those 
rules  and  principles  which  have  been  treated  in  the  first  sec- 
tion of  this  chapter  relate  to  easements  of  all  kinds,  and  it  is 
only  in  cases  of  rights  to  light,  support,  and  ways,  that  any 
special  principles  of  law  demand  notice  which  relate  exclusively 
to  those  particular  rights.  These  principles  will  now  be  con- 
sidered. 

LIGHT. 

It  frequently  becomes  a  question  of  some  difficulty  whether 
a  right   to  light   is  entirely  lost   by  abandonment, 
when  ancient  lights  have  been  closed  by  the  owner   abandon- 
of  a  building,  or  whether  he  is  to  be  deemed  merely 
to  have  closed  his  windows  for  a  temporary  purpose,  so  as  to 
be  entitled  to  reopen  them  at  a  future  time  if  he  again  has 
need  of  the  light.     The  easement  of  light,  which  is  an  ease- 
ment of  a  negative  character  —  that  is,  not  one  by  which  the 
dominant  owner  is  entitled  to  do  something  on  the  servient 
estate,  but  one  by  which  the  servient  owner  is  restrained  from 
doing  something  on  his  own  land  for  the  benefit  of  the  dom- 
inant owner  —  differs  from  rights  of  way  and  other  easements 
of  a  positive  character,  in  this  —  positive  easements  have  their 
origin  in  a  grant,  by  which  some  right  is  conferred  by  the  ser- 
vient on  the  dominant  owner,  whereas  a  right  to  light  orig- 

y  See,  ante,  chapter  II.  pp.  98-108 ;  Ferguson  i;.  Whitsell,  5  Rich.  L. 
281. 


478      EXTINCTION,   SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

inates,  not,  strictly  speaking,  in  a  grant,  but  rather  in  a  cov- 
enant by  the  servient  owner  not  to  build  on  his  own  land  so 
as  to  obstruct  his  neighbor's  light/  To  destroy  an  easement 
of  a  positive  character  by  abandonment,  non-user  must  be  of 
such  a  character  that  a  release  of  the  right  granted  can  be 
presumed,  but  no  release  of  a  right  need,  or  indeed  can,  be 
presumed  in  the  case  of  light,  for  there  is  no  right  to  recon- 
vey,  but,  instead,  the  servient  owner  must  be  released  from 
his  obligation  not  to  build  created  by  his  implied  covenant. 

It  has  been  thought,  that  as  twenty  years'  user  is  requisite 
Release  ^o  render  a  grant  capable  of  being  presumed,  so 
presumed  twenty  years'  non-user  is  requisite  to  raise  a  pre- 
than  sumption  of   release  of   an  easement  ;    but  this,  as 

years'" non-  has  already  been  shown,  is  not  so,  for  the  possibility 
of  presuming  a  release  depends  much  more  on  the 
character  of  the  non-user,  and  the  accompanying  circum- 
stances, than  on  its  duration.**  In  the  case  of  Stokoe  v.  Sing- 
ers* the  facts  were,  that  there  had  been  ancient  windows  in 
the  plaintiff's  warehouse,  guarded  by  iron  bars,  that  the  owner 
of  the  warehouse  had  blocked  up  the  windows  inside  with 
rubble  and  plaster,  but  had  left  the  bars  outside,  so  that  to  a 
spectator  from  the  outside  it  was  obvious  that  windows  had  ex- 
isted. The  windows  remained  in  that  condition  for  nineteen 
years,  and  then  the  owner  of  the  land  in  front  of  the  windows 
began  to  build  in  such  a  manner  that  the  plaintiff  would  have 
been  wholly  prevented  from  again  opening  his  windows  for 
the  reception  of  light.  To  try  the  question  of  abandonment, 
the  defendant  erected  a  hoarding  so  as  to  obstruct  the  win- 
dows, and  the  action  was  brought  for  that  obstruction.  The 
summing  up  of  the  learned  judge,  Martin,  B.,  who  tried  the 
cause,  which  was  afterwards  approved  by  the  Court  of  Queen's 
Bench,  was  to  the  effect  that  closing  the  windows,  wdth  the 
intention  of  never  opening  them  again,  would  operate  as  an 
abandonment  and  destroy  the  right,  but  that  closing  them  for 

*  There  are  other  easements  of  a  negative  character  besides  light,  to 
which  these  remarks  apply. 
"  See  ante,  p.  465. 
"  8  E.  &  B.  31;  26  L.  J.  Q.  B.  257. 


LIGHT.  479 

a  mere  temporary  purpose  would  not  have  that  effect.  He  also 
stated,  that  though  the  person  entitled  to  have  light  uninter- 
rupted might  not  really  have  abandoned  his  right,  yet,  if  he 
manifested  such  an  appearance  of  having  abandoned  it  as  to 
induce  the  owner  of  the  adjoining  land  to  alter  his  position  in 
the  reasonable  belief  that  the  right  was  abandoned,  there 
would  be  a  preclusion  as  against  him  from  claiming  the  right. 
On  this  ruling  the  jury  found  in  favor  of  the  plaintiff,  and  the 
Court  of  Queen's  Bench  subsequently  discharged  a  rule  for  a 
new  trial  on  the  ground  of  misdirection.  Again,  in  the  case 
of  Moore  v.  Rawson,''  the  plaintiff  possessed  a  building,  used 
as  a  weaver's  shop,  in  which  there  had  been  ancient  lights. 
About  seventeen  years  before  the  action,  the  then  owner  took 
down  the  old  building  and  erected  a  stable,  which  had  a 
blank  wall  in  the  place  of  that  which  had  contained  the  an- 
cient lights.  Three  years  before  action  the  defendant  erected 
a  building  next  to  the  blank  wall,  and  the  plaintiff  then 
opened  a  window  in  that  wall  in  the  same  place  where  one 
of  the  ancient  lights  had  been  situate,  and  the  action  was 
brought  for  obstruction  of  that  window,  and  it  was  decided 
that  the  action  could  not  be  maintained,  as  the  right  to  light 
had  been  lost  by  abandonment.  Abbott,  C.  J.,  said,  that  it 
seemed  to  him  that  if  a  person  entitled  to  ancient  lights  pulls 
down  his  house,  and  erects  a  blank  wall  in  the  place  of  a  wall 
in  which  there  had  been  windows,  and  suffers  that  wall  to  re- 
main for  a  considerable  period  of  time,  it  lies  upon  him,  at 
least,  to  show  that  at  the  time  when  he  so  erected  the  blank 
wall,  and  thus  apparently  abandoned  the  windows  which  gave 
light  and  air  to  the  house,  that  was  not  a  perpetual  but  a  tem- 
porary abandonment  of  the  enjoyment,  and  that  he  intended 
to  resume  the  enjoyment  of  those  advantages  within  a  reason- 
able period  of  time.  He  thought  that  the  burden  of  showing 
that  lay  on  the  party  who  had  discontinued  the  use  of  the 
light.  By  building  the  blank  wall  he  may  have  induced  an- 
other person  to  become  the  purchaser  of  the  adjoining  ground 
for  building  purposes,  and  it  would  be  most  unjust  that  he 
should  afterwards  prevent  such  a  person  from  carrying  those 
purposes  into  effect. 

c  3  B.  &  C.  332;  3  L.  J.  K.  B.  32. 


480      EXTINCTION,   SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

Another  point  which  has  given  rise  to  considerable  diffi- 
Effect  of  culty  is,  the  effect  on  rights  to  Hght  caused  by  alter- 
aitering  j^g  the  position  of  or  enlarging  windows  to  which  a 
sition  of  right  to  light  belongs.  Owing  to  the  recent  deci- 
sion in  the  case  of  Tapling  v.  Jones,  in  the  House  of 
Lords,  already  alluded  to  with  reference  to  rights  acquired 
under  the  Prescription  Act,  a  difference  seems  to  exist  be- 
tween the  effect  produced  on  prescriptive  rights  to  light  and 
rights  acquired  by  grant. 

With  respect  to  rights  acquired  by  grant  a  material  altera- 
Effect  on  tion  in  the  position  or  size  of  a  window  may  proba- 
qi^red'by  ^^J  effect  the  destruction  of  a  right  to  light  though 
grant.  a  trifling  alteration  will  not  do  so.     If  a  right  is  cre- 

ated by  grant  it  may  be  that  the  grantor  intends  his  grantee 
only  to  have  his  window  in  the  exact  position  or  of  the  exact 
size  it  is  at  the  time  of  the  grant,  for  that  may  not  be  objec- 
tionable to  him,  whereas  any  alteration  may  cause  him  sub- 
stantial injury.  On  this  subject  a  case,  which  was  decided 
before  the  distinction  between  rights  acquired  by  grant  and 
rights  acquired  by  prescription  was  established,  is  in  point, 
and  without  entering  on  the  facts  of  the  case,  which  were 
somewhat  complicated,  it  is  only  necessary  to  refer  to  a  part 
of  the  judgment  of  the  court,  which  was  delivered  by  Patte- 
son,  J.  After  referring  to  the  arguments,  he  continued : 
"  With  respect  to  the  western  window,  the  part  of  the  house 
in  which  it  is  placed  had  no  existence  till  after  the  convey- 
ance of  1822  ;  the  land  on  which  the  structure  was  afterwards 
raised  had,  up  to  that  time,  been  used  only  as  a  passage.  As 
to  the  windows  at  the  east,  the  case  finds  that  they  do  not  oc- 
cupy the  places  of  the  old  windows  ;  the  wall  in  which  those 
windows  were,  no  longer  exists  ;  and  assuming  that  no  greater 
change  of  position  has  been  made  than  is  necessarily  conse,- 
quent  upon  a  carrying  out  of  the  walls  five  feet  and  convert- 
ing the  termination  into  a  bow,  such  a  change  is,  in  our  opin- 
ion, sufficient  to  prevent  their  being  clothed  with  the  same 
rights  as  the  former  windows.  In  whatever  way  precisely  the 
right  to  enjoy  the  unobstructed  access  of  light  and  air  from 
adjoining   land   may  be   acquired    (a   question   of   admitted 


LIGHT.  481 

nicety),  still  the  act  of  the  owner  of  such  land  from  which  the 
right  flows  must  have  reference  to  the  state  of  things  at  the 
time  when  it  is  supposed  to  have  taken  place ;  and  as  the  act 
of  the  one  is  inferred  from  the  enjoyment  of  the  other  owner, 
it  must  in  reason  be  measured  by  that  enjoyment.  The  con- 
sent, therefore,  cannot  fairly  be  extended  beyond  the  access 
of  light  and  air  through  the  same  aperture  (or  one  of  the 
same  dimensions  and  in  the  same  position)  Avhich  existed  at 
the  time  when  such  consent  is  supposed  to  have  been  given. 
It  appears  to  us  that  convenience  and  justice  both  require  this 
limitation  ;  if  it  were  once  admitted  that  a  new  window  vary- 
ing in  size,  elevation,  and  position  might  be  substituted  for 
an  old  one  without  the  consent  of  the  owner  of  the  adjoining 
land  it  would  be  necessary  to  submit  to  juries  questions  of  de- 
gree, often  of  a  very  uncertain  nature,  and  upon  very  uncer- 
tain evidence.  And  in  the  same  case  a  party  who  had  acqui- 
esced in  the  existence  of  a  window  of  a  given  size,  elevation, 
or  position,  because  it  was  felt  to  be  no  annoyance  to  him, 
might  be  thereby  concluded  as  to  some  other  window  to  which 
he  might  have  the  greatest  objection,  and  to  which  he  would 
never  have  consented  if  it  had  come  in  question  in  the  first 
instance.''  '^ 

Rights  to  light  acquired  by  prescription  have  now  been  de- 
termined to  stand  upon  a  different  footing  altogether    ggg^t  ^^ 

from  rights  acquired  by  grant.     Much  has  already   rights  ac- 
1  -1  1  •  1  •  -1  11      •  1  quired  by 

been  said  on  this  subject,  and  many  alhisions  have   prescrip- 

been  made  to  the  case  of  Tapling  v.  Jones,*  in  which 
the  law  relating  to  prescriptive  rights  to  light  was  shown  by 
the  House  of  Lords  to  be  very  different  from  what  it  had  pre- 
viously been  supposed  to  be.     For  the  purpose  of  the  present 
chapter,  all  that  need  be  said  about  that  case  is,  that  it  was 

<*  Blanchard  v.  Bridges,  4  A.  &  E.  at  p.  190 ;  5  L.  J.  N.  S.  K.  B.  at  p. 
83. 

«  11  H.  L.  C.  290;  34  L.  J.  C.  P.  342.  In  the  case  of  Chandler  v. 
Thompson  (3  Camp.  80),  Le  Biano,  J.,  held  the  law  respecting  alteration 
of  ancient  windows  to  be  the  same  as  it  was  subsequently  held  to  be  in  the 
case  of  Tapling  v.  Jones,  although  Chandler  v.  Thompson  was  decided 
long  before  the  passing  of  the  Prescription  Act. 
31 


482      EXTINCTION,    SUSPENSION,  AND   REVIVAL   OF   EASEMENTS. 

there  determined  that  the  owner  of  an  ancient  light  does  not 
lose  his  right  merely  from  the  circumstance  that  he  has 
opened  new  windows  close  to  the  ancient  light,  or  that  he  has 
altered  the  size  and  position  of  the  latter — that  is,  always 
assuming  that  some  portion  of  the  altered  window  corresponds 
with  some  portion  of  the  ancient  light ;  for  the  ancient  right 
can  never  be  said  to  attach  to  a  portion  of  a  window  in  an  en- 
tirely new  situation.  It  should  be  noticed,  however,  that  in 
the  case  of  Tapling  v.  Jones,  Lord  Chelmsford,  while  agreeing 
with  the  general  principles  laid  down  by  the  other  lords,  re- 
marked that  it  will  of  course  be  a  question  in  each  case 
whether  the  circumstances  satisfactorily  establish  an  intention 
to  abandon  altogether  the  future  enjoyment  and  exercise  of 
the  right,  for  if  such  an  intention  is  clearly  manifested,  the 
adjoining  owner  may  build  as  he  pleases  upon  his  own  land ; 
and  should  the  owner  of  the  previously  existing  window  re- 
store the  former  state  of  things,  he  could  not  compel  the  re- 
moval of  any  building  which  had  been  placed  upon  the  ground 
during  the  interval,  for  a  right  once  abandoned  is  abandoned 
forever.  In  the  recent  case  of  National  Provincial  Plate  Glass 
Ins.  Company  v.  Prudential  Assurance  Company,^  it  was 
held,  explaining  Tapling  v.  Jones  and  Blanchard  v.  Bridges,^ 
that  where  a  building  containing  ancient  lights  is  pulled  down, 
and  replaced  by  another,  in  which  the  front  is  set  back,  and  a 
dormer  window  converted  into  a  sky-light,  the  right  to  access 
of  light  is  not  lost  by  the  change  thus  made. 

The  question  of  loss  of  rights  to  light  by  non-user  was  also 
referred  to   by  the   lord  chancellor   in    the  case  of 

N'on^usBr. 

Tapling  v.  Jones,  and  that  is  a  point  which  requires 
notice  in  this  place.  It  has  been  said  that  questions  relating 
to  abandonment  can  only  arise  after  an  easement  has  been 
actually  acquired  —  that  is,  after  the  right,  if  claimed  under 
the  Prescription  Act,  has  been  brought  into  question  in  some 
Buit  or  action,  for  unless  some  suit  or  action  relating  to  the 
right  has  arisen,  the  question  cannot  be  one  respecting  aban- 
donment, but  it  will  be  whether  the  user  has  been  suflScient 

1  6  Ch.  D.  757  (1877). 
34  A.  &  E.  176. 


LIGHT.  488 

for  the  acquisition  of  the  right.  The  remark  of  the  lord 
chancellor,  to  which  attention  is  now  directed,  was,  that 
"  after  an  enjoyment  of  an  access  of  light  for  twenty  years 
without  interruption,  the  right  is  declared  by  the  statute  to 
be  absolute  and  indefeasible  ;  and  it  would  seem,  therefore, 
that  it  cannot  be  lost  or  defeated  by  a  subsequent  temporary 
intermission  of  enjoyment  not  amounting  to  abandonment." 
In  this  expression  of  opinion  it  would  appear  as  if  his  lordship 
thought  a  difference  exists  between  rights  to  light  and  rights 
to  other  easements  in  this  respect,  owing  to  the  peculiar  form 
of  the  third  section  of  the  act,  but  it  is  thought  no  such  dif- 
ference really  exists,  for  whether  it  be  that  after  twenty  years' 
enjoyment  a  right  to  light  is  to  be  deemed  absolute  and  inde- 
feasible under  the  third  section  of  the  act,  or  whether  it  is 
that  after  a  like  period  of  enjoyment  no  way  or  other  matter 
is  to  be  defeated,  by  showing  only  that  such  way  or  other 
matter  was  first  enjoyed  at  any  time  prior  to  such  period  of 
twenty  years,  each  of  those  periods,  it  is  declared  in  the  fourth 
section  of  the  statute,  is  to  be  deemed  and  taken  to  be  the  pe- 
riod next  before  some  suit  or  action  ;  until  such  suit  or  action, 
therefore,  a  right  to  light  does  not  become  absolute  and  inde- 
feasible, neither  is  a  prescriptive  title  to  a  way  acquired  under 
the  second  section  of  the  act  ;  and  in  either  case  non-user  be- 
fore the  suit  or  action  would  raise  the  question  of  interruption 
or  of  breach  of  continuity  of  user  sufficient  to  defeat  prescrip- 
tion, and  after  the  suit  or  action  neither  right  could  be  de- 
feated by  non-user  unless  it  amounted  to  abandonment  of  the 
easement. 

Destruction  of  a  building  is  not  of  itself  sufficient  to  put  an 
end  to  a  right  to  light,  for,  as  was  before  observed,   „   ,     .. 

"  .  Restoration 

the  question  of  abandonment  is  to  be  decided,  not  of  ancient 
alone  from  the  fact  of  non-user  but  rather  from  the  new  build- 
intention  of  the  dominant  owner  when  he  ceases  to  "'^*' 
use  his  right,  and  his  intention  must  always  be  discovered 
from  surrounding  circumstances.  In  Moore  v.  Rawson-''  the 
destruction  of  a  dominant  tenement  with  ancient  windows, 
and  the  erection  of  a  different  kind  of  building  with  a  blank 
/3  B.  &  C.  332;  3  L.J.  K.  B.  32. 


484      EXTINCTION,    SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

wall  in  the  place  of  the  ancient  lights,  was  held  to  have  de- 
stroyed the  right  to  light  after  a  period  of  seventeen  years, 
because  the  intention  of  the  dominant  owner  to  abandon  his 
right  was  apparent  from  his  acts,  but  if  a  dominant  owner 
pulls  down  his  house  and  erects  another  with  lights  in  the 
same  position  as  the  ancient  windows  of  the  old  building,  he 
does  not  from  that  circumstance  lose  his  right  to  light,  but 
the  easement  attaches  to  the  windows  of  the  new  building 
when  erected.^ 

SUPPORT. 

It  has  been  a  matter  of  doubt  whether  the  placing  of  an 
Effect  on  artificial  weight  on  land  so  as  to  impose  a  greater 
fu^pport^of  pressure  on  the  subjacent  or  adjacent  soil  of  other 
imposing      persous  than  that  which  previously  existed  has  not 

additional      ^  n  p  i 

weights.  the  effect  of  destroying,  or,  at  all  events,  oi  suspend- 
ing, the  natural  right  to  support  to  which  the  landowner  was 
entitled  before  the  artificial  weight  was  imposed;  and  the 
same  doubt  may  be  raised  with  regard  to  the  easement  of 
support,  for  if  the  owner  of  a  house  who  has  acquired  a  right 
to  support  increases  the  pressure  on  his  neighbor's  land  by 
increasing  the  height  of  his  building,  does  he  lose  his  right  to 
that  amount  of  support  to  which  he  was  previously  entitled, 
or  is  the  servient  owner  still  bound  not  to  excavate  in  his 
land  in  a  manner  such  as  would  have  caused  the  fall  of  the 
building,  supposing  the  weight  had  not  been  increased  ? 
There  can  be  no  doubt  that  no  greater  obligation  can  be  cast 
on  the  servient  owner  by  the  act  of  imposing  the  additional 
weight  than  that  to  which  he  was  previously  liable  —  that  is, 
he  cannot  be  compelled  to  support  the  additional  weight  until 
an  easement  has  been  gained  in  that  behalf,  but  it  has  now 
Effect  on  a  been  determined  that  the  natural  right  to  support  is 
rf^ht^o  ^^^  suspended  if  the  additional  weight  of  buildings 
support.  is  imposed  on  the  dominant  land,  though  no  action 
can  be  maintained  against  the  servient  owner  for  excavating 
and  causing  the  land  and  buildings  to  sink,  if  the  sinking 
would  not  have  occurred  had  the  buildings  not  been  erected. 
"  Curriers'  Co.  v.  Corbett,  2  Dr.  &  Sm.  355. 


WAYS.  485 

On  the  other  hand,  if  the  newly  erected  buildings  were  not 
the  primary  cause  of  the  sinking  —  that  is,  if  the  land  would 
have  sunk  equally  when  the  excavation  was  made  even  though 
no  buildings  had  been  there,  the  servient  owner  may  be  sued 
for  his  wrongful  act  in  removing  the  support  to  which  the 
dominant  owner  was  entitled  of  natural  right,  and  compensa- 
tion may  also  be  recovered  for  the  injury  caused  to  the  build- 
ings as  consequential  damages.''  As,  then,  the  effect  Effect  on 
of  building  on  land  is  not  to  suspend  the  natural  right  n"ent  o^f 
to  support,  why  should  the  fact  of  increasing  the  support. 
weight  of  an  ancient  building  have  the  effect  of  depriving  the 
owner  of  his  right  to  that  degree  of  support  to  which  he  was 
entitled  before  he  increased  the  weight  ?  The  point  appears 
not  yet  to  have  been  decided,  but  it  would  seem  that  the  only 
effect  of  so  building  would  be  to  deprive  the  householder  of 
a  right  of  action  if  the  injury  arose  through  the  weight  of  his 
house  having  been  increased. 

WAYS. 

Besides  the  several  means  by  which  all  easements  may  be 
destroyed,  and  which  have  been  noticed  in  the  first  Extinction 
section  of  this  chapter,  a  private  right  of  way  may  °°  pub?ic°" 
be  extinguished  by  the  creation  of  a  public  right  of  ways. 
way  over  the  same  road  subsequently  to  the  acquisition  of 
the  private  right ;  but  though  a  private  right  may  thus  be 
destroyed  it  does  not  follow  that  destruction  of  the  easement 
is  the  inevitable  result  of  the  creation  of  the  public  right,  for 
the  two  may  coexist,  and  unless  the  dominant  owner  aban- 
dons or  releases  his  right,  his  easement  is  not  destroyed.  In 
the  case  of  Regina  v.  Chorley  *  the  defendants  claimed  a  pri- 
vate right  of  way  along  a  lane  over  which  the  public  had 
gained  a  right  of  passage  subsequently  to  the  creation  of  their 

^  Brown  v.  Robins,  4  H.  &  N.  186;  28  L.  J.  Exch.  250;  Stroyan  v. 
Knowles,  6  H.  &  N.  454  ;  30  L.  J.  Exch.  102.  See,  however,  Smith  v. 
Thackerah,  L.  R.  1  C.  P.  564;  35  L.  J.  C.  P.  276;  Wyatt  r.  Harrison,  3 
B.  &  Ad.  871.  And  the  American  rule  is  opposed  to  Brown  v.  Robins 
on  this  point.  See  Gilmore  v.  Driscoll,  122  Mass.  199;  Thurston  v.  Han- 
cock, 12  Mass.  220;  Foley  v.  Wyeth,  2  Allen,  131. 

»  12  Q.  B.  515. 


486      EXTINCTION,    SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

easement,  and  one  question  in  the  case  was,  whether  the  de- 
fendants' private  right  was  lost.  The  court  said  that  "  assum- 
ing the  defendants'  to  have  been  the  prior  right,  theirs  was 
the  dominant  tenement,  the  hme  was  the  servient  tenement : 
the  owner  of  this  last,  then,  could  not  dedicate  absolutely  to 
the  public  so  long  as  it  remained  subject  to  the  prior  right ; 
he  could  give  nothing  but  what  he  himself  had,  a  right  of 
user  not  inconsistent  with  the  defendants'  easement.  The 
question,  therefore.  Has  the  owner  effectually  made  an  ab- 
solute dedication  to  the  public  ?  necessarily  involves  this  :  Has 
the  defendant  released  the  right  which  he  enjoyed?  " 

Ways  of  necessity  are  coextensive  with  the  necessity  ;  they 
„T  ,  arise  by  implied  grant,  and  such  grant  continues 
necessity  while  the  necessity  lasts  ;  but  if  the  necessity, comes 
the  neces-  to  an  end,  the  right  of  way  is  extinguished.  It  is 
®'^^'*  true  that  during  the  argument  in  the  case  of  Proctor 

V.  Hodgson,*  Parke,  B.,  observed :  "  The  extent  of  the  author- 
ity of  Holmes  v.  Goring  is,  that  admitting  a  grant  in  general 
terms,  it  may  be  construed  to  be  a  grant  of  a  right  of  way  as 
from  time  to  time  may  be  necessary.  I  should  have  thought 
it  meant  as  much  a  grant  forever  as  if  expressly  inserted  in  a 
deed,  and  it  struck  me  at  that  time  that  the  court  was  wrong  ; 
but  that  is  not  the  question  now ; "  but  this  expression  of 
opinion,  coming  even  from  Parke,  B.,  cannot  be  taken  to  over- 
rule the  case  of  Holmes  v.  Goring '  and  the  principles  of  law 
there  established.  In  that  case  the  facts  were  that  the  de- 
fendant was  seised  of  two  closes  of  land,  between  which  lay 
two  other  closes  belonging  to  the  plaintiff,  and  over  these  the 
defendant  enjoyed  a  right  of  way  of  necessity  from  one  of  his 
closes  to  the  other,  as  the  latter  was  otherwise  without  means 
of  approach.  Subsequently,  the  defendant  became  possessed 
of  another  piece  of  land  adjoining,  over  which  he  might  have 
passed,  instead  of  using  the  old  way  over  the  land  of  the 
plaintiff,  and  the  question  was  whether  the  right  of  way  of 
necessity  came  to  an  end  when  the  defendant  acquired  the 
possibility  of  getting  to  his  ground  without  using  the  road 

^  10  Exch.  at  p.  828. 

'  2  Bing.  76  ;  2  L.  J.  C.  P.  134. 


WAYS.  487 

over  his  neighbor's  soil,  and  it  was  held  that  it  did,  for  that 
the  right  terminated  with  the  necessity.  Best,  C.  J.,  said, 
"If  I  have  four  fields,  and  grant  away  two  of  them  over 
which  I  have  been  accustomed  to  pass,  the  law  will  presume 
I  reserve  a  right  of  way  to  those  which  I  retain :  but  what 
right  ?  The  same  as  existed  before  ?  No  ;  the  old  right  is 
extinguished,  and  the  new  way  arises  out  of  the  necessity  of 
the  thing.  The  passage  which  has  been  cited  from  Serjeant 
Williams's  note  contains  a  complete  answer  to  the  argument 
on  the  part  of  the  defendant :  '  A  way  of  necessity,  when  the 
nature  of  it  is  considered,  will  be  found  to  be  nothing  else 
than  a  way  by  grant ; '  but  a  grant  of  no  more  than  the  cir- 
cumstances which  raise  the  implication  of  necessity  require 
should  pass."  ..."  A  grant,  therefore,  arising  out  of  the 
implication  of  necessity  cannot  be  carried  farther  than  the 
necessity  of  the  case  requires,  and  this  principle  consists  with 
all  the  cases  which  have  been  decided." 

THE    AMERICAN    LAW. 

In  America,  too,  it  is  well  settled,  in  conformity  with 
Holmes  V.  Goring,  that  a  right  of  way  by  necessity  ceases 
with  the  necessity  ;  and,  therefore,  if  the  owner  of  such  a  right 
subsequently  acquires  another  avenue  to  the  highway,  either 
by  purchase,  by  prescription,  by  the  laying  out  of  a  public 
highway  to  his  premises,^  and  a  fortiori  by  the  purchase  of 
the  intervening  land,^  the  former  way  by  necessity  is  ex- 
tinguished. The  same  result  would  seem  to  follow  if  he  has 
had  a  private  way  laid  out  for  him  by  the  public  authoritiesi 
at  his  own  expense,  as  some  states  allow  ;  for  this  might  be 
considered  only  a  statutory  purchase,  and  attended  with  the 
same  consequences  as  a  voluntary  purchase  ;  but  this  point 
may  not  have  been,  as  yet,  judicially  determined. 

Whether  a  former  way  by  necessity  would  revive  upon  the 
loss  or  termination  of  a  subsequent  way  which  had  been  sub- 
sequently acquired,  and  thus  terminated  the  former  way  of 
necessity,  is  at  least  doubtful.     In  Baker  v.  Crosby  ^  it  was 

1  Abbot  V.  Stewartstown,  47  N.  H.  230. 

2  Baker  v.  Crosby,  9  Gray,  424  ;  Viall  v.  Carpenter,  14  Gray,  126. 
8  9  Gray,  421. 


488      EXTINCTION,   SUSPENSION,    AND   REVIVAL    OF   EASEMENTS. 

held  that  if  one  having  a  way  by  necessity  over  the  land  of 
another,  subsequently  acquires  another  way  to  the  same  high- 
way over  another  tract,  and  afterwards  conveys  away  the  last 
lot,  his  former  right  of  way  is  not  thereby  revived. 

Union  of  seisin  causes  extinction  of  a  way  of  necessity  as 
„  ,.    ,.        it  does  of  anv  other  easement,  for  the  rig-ht  of  pas- 

Extinction  _     •'  '  to  r 

of  ways  of    sage  on  union  ceases  to  be  an  easement,  and  becomes 

nGCGSsitv 

on  union  of  One  of  the  Ordinary  rights  of  property ;  if,  therefore, 
seisin.  ^i^g  original    dominant  and   servient  tenements  are 

again,  after  union,  severed  by  sale  or  otherwise,  the  orig- 
Re-crea-  i^al  right  does  not  revive,  but  a  new  way  of  ne- 
right°on  cessity  is  granted  by  implication  if  the  necessity  con- 
severance,    tinues."* 

In  order  to  extinguish  a  right  of  way  by  the  unity  of  title 
and  possession  of  the  dominant  and  servient  tenements  in  one 
person,  the  estates  thus  united  must  be  respectively  equal  in 
duration,  and  not  liable  to  be  again  disjoined  by  act  of  law. 
Accordingly,  it  is  not  extinguished  by  the  vesting  of  both  es- 
tates in  the  same  person  by  two  separate  mortgages,  from  the 
respective  owners  of  the  two  estates,  until  such  mortgages  are 
both  fully  foreclosed  and  the  mortgagee's  title  to  each  is  com- 
plete and  perfect.^  Nor  is  the  easement  extinguished  if  the 
title  to  the  land  itself  is  essentially  defective.^ 

Rights  of  way  may  also  be  extinguished  or  lost  by  an  aban- 
By  aban-  donment.  But  the  mere  non-user  of  a  right  of  way 
donment.      acquired  hy  deed,  for  any  length  of  time,  will  not, 

>"  Pheysey  v.  Vicary,  16  M.  &  W.  per  Parke,  B.,  at  p.  491;  Holmes  v. 
Goring,  2  Bing.  76;  2  L.  J.  C.  P.  134.  In  Atwater  v.  Bodfish,  11  Gray, 
151,  this  rule  was  applied  to  a  right  of  way  hy  prescription,  and  in  which 
the  owner  of  the  dominant  tenement  purchased  the  servient  estate,  and 
subsequently  sold  the  same,  but  without  reserving  any  way  in  his  deed; 
and  it  was  held  he  no  longer  had  any  right  from  his  former  lot.  But  a 
private  way  laid  out  by  public  authorities  in  Massachusetts,  under  St.  1 786, 
c.  67,  is  not  extinguished  or  discontinued  merely  by  the  purchase  of  the 
land  through  which  it  runs,  by  the  party  for  whom  it  was  laid  out,  for  in 
that  state  such  ways  are  not  merely  private  ways,  but  are  quasi  public. 
Flagg  V.  Fiagg,  16  Gray,  175;  Denham  v.  County  Commissioners,  108 
Mass.  202. 

^  Ritger  v.  Parker,  8  Cush.  145.  And  see  Ballard  v.  Ballard  Vale  Co.  5 
Gray,  471. 

2  Tyler  v.  Hammond,  11  Pick.  220. 


WAYS.  489 

in  and  of  itself,  unconnected  with  any  proof  of  an  adverse  en- 
joyment by  the  owner  of  the  servient  estate,  of  the  land  or 
soil  under  such  way  necessarily  amount  to  an  abandonment.-^ 

And  in  Hay  ford  v.  Spokesfield,  100  Mass.  491,  it  was  held 
that  even  maintaining  a  board  fence  five  feet  high  by  the 
owner  of  the  dominant  tenement  across  the  opening  or  mouth 
of  the  way  for  a  period  of  seven  years  was  not  necessarily  an 
abandonment  or  loss  of  the  right  of  way  so  as  to  prevent  its 
enjoyment  afterwards  by  removing  the  fence.  Chapman, 
C.  J.,  said  :  "  The  right  cannot  have  been  lost  by  mere  non- 
user  ;  for  the  doctrine  of  extinction  by  mere  disuse  does  not 
apply  to  an  easement  acquired  by  deed.  Washb.  on  Ease- 
ments (2d  ed.),  641,  and  cases  cited.  There  must  be  some- 
thing more  than  this.  In  this  respect,  it  differs  from  an  ease- 
ment acquired  by  prescription.  In  Dyer  v.  Sanford,  9  Met. 
395,  402,  it  is  said  that  the  acts  of  the  owner  of  the  dominant 
tenement  must  be  of  so  decisive  and  conclusive  a  character  as 
to  indicate  and  prove  his  intent  to  abandon  the  easement.  In 
several  cases,  the  effect  of  particular  acts  has  been  discussed. 
Stokoe  V.  Singers,  8  El.  &  Bl.  31,  is  a  strong  case  of  the  clos- 
ing of  windows  from  1837  to  1856,  in  which  it  was  held  that 
the  easement  of  light  had  not  thereby  been  lost.  The  obstruc- 
tion was  of  a  permanent  character,  and  would  not  be  likely  to 
decay  within  twenty  years ;  whereas,  in  this  case,  the  board 
fence  could  be  removed  with  hardly  any  trouble  or  expense, 
and  would  be  likely  to  decay  in  a  few  years.  In  Ward  v. 
Ward,  7  Exch.  838,  it  was  held  that  discontinuing  the  use  of 
a  way  merely  by  reason  of  the  party's  having  a  more  con- 
venient way  was  not  evidence  of  abandonment.  In  Lovell  v. 
Smith,  3  C.  B.  N.  S.  120,  it  was  held  that  the  substitution 
of  a  new  way  for  an  old  one  by  agreement,  and  a  consequent 
discontinuance  of  the  use  of  the  old  way,  afforded  no  evidence 
of  the  abandonment  of  the  old  one.  In  Hale  v.  Oldroyd,  14  M. 
&  W.  789,  a  similar  doctrine  was  held.  In  the  present  case, 
the  use  of  the  ten-foot  way  was  substituted  for  that  of  the 

1  Bannon  v.  Angier,  2  Allen,  129;  Barnes  v.  Lloyd,  112  Mass.  231. 
And  see  Arnold  v.  Stevens,  24  Pick.  Ill;  Jennison  v.  Walker,  11  Gray, 
423;  Owen  v.  Field,  102  Mass.  114. 


490      EXTINCTION,    SUSPENSION,   AND   REVIVAL   OF   EASEMENTS. 

three-foot  way.  The  case  of  Grain  v.  Fox,  16  Barb.  184,  is 
cited,  in  which  the  existence  of  certain  facts  was  held  to  con- 
stitute an  abandonment ;  but  it  was  a  very  different  case  from 
this.  The  erection  of  the  fence,  and  the  addition  of  pales  to  it 
afterwards  would  serve  to  keep  the  animals  of  the  owner  from 
escaping,  and  the  animals  of  his  neighbors  from  entering  upon 
his  lot,  and  the  ten-foot  way  could  not  have  been  a  very  in- 
convenient substitute  for  the  other  ;  and  so  many  motives 
may  be  assigned  for  maintaining  the  fence  temporarily,  and 
the  structure  was  so  slight  and  so  easily  removed,  that  it  is 
far  from  being  sufficient  of  itself  to  prove  an  abandonment  of 
the  easement." 

By  change  of  location  a  right  of  way  existing  by  prescrip- 
tion, or  necessity  may  be  extinguished,  or  rather  the  location 
of  such  a  way  may  be  changed  by  the  oral  agreement  of  both 
parties,  and  the  actual  use  and  substitution  of  a  new  way  or 
route  in  place  of  the  former ;  and  wherever  this  is  done  by 
mutual  agreement,  and  the  new  location  is  actually  used  and 
adopted  in  place  of  the  former,  the  right  to  travel  in  the 
former  path  is  thereby  lost,  and  the  right  to  the  new  way  or 
route  becomes  fixed  and  irrevocable  ^  in  the  owner  of  the 
original  way. 

In  Shelby  v.  The  State  ^  the  public  had  ceased  to  use  a 
public  highway  and  adopted  another  for  several  years,  and  the 
owner  of  the  soil  afterwards  resumed  possession  and  use  of 
the  old  road,  and  inclosed  it  with  his  adjoining  estate,  it  was 
held,  in  the  absence  of  any  contrary  proof,  that  the  abandon- 
ment of  the  old  road  might  well  be  presumed,  and  the  owner 
was  held  not  liable  to  indictment  for  erecting  the  fence. 

But  in  England  it  has  been  held  that  an  oral  agreement  to 
substitute  a  new  way  for  an  old  one  acquired  by  prescription, 
followed  by  a  use  of  the  new  way  for  over  thirty  years,  did 
not  warrant  a  jury  in  finding  that  the  old  way  had  been  aban- 

^  Pope  V.  Devereux,  5  Gray,  409;  Larned  v.  Larned,  11  Met.  421 ;  Smith 
V.  Barnes,  101  Mass.  278.     And  see  Smith  v.  Lee,  14  Gray,  480. 

2  10  Humph.  165.  And  see  Hutto  v.  Tindall,  6  Rich.  L.  396.  Mere 
non-user  of  the  whole  width  of  the  way  might  not  have  the  same  effect. 
See  Fox  v.  Hart,  11  Ohio,  414;  State  v.  Alstead,  18  N.  H.  65. 


WAYS.  491 

doned  ;  ^  and  Willes,  J.,  was  inclined  to  think  that  there 
never  could  be  an  abandonment  of  a  prescriptive  easement 
without  a  deed,  or  evidence  from  which  a  jury  could  presume 
a  release  of  it. 

No  case  has  yet  arisen  in  which  the  means  of  access  to  a 
path  over  which  there  is  a  private  right  of  way  has 
been  cut  off  in  such  a  manner  as  to  leave  the  path  coming  in- 
inaccessible  so  as  to  raise  the  question  of  the  effect 
of  such  a  circumstance  on  the  easement.  Until  recently  no 
such  case  had  arisen  with  reference  to  a  public  right  of  way  ; 
but  in  Bailey  v.  Jamieson,"  the  point  came  directly  before  the 
court  for  determination,  and  it  is  therefore  possible,  though  it 
is  difficult  to  see  by  what  means,  a  similar  question  may  arise 
with  reference  to  a  private  right  of  way.  There  was,  in  that 
case,  a  public  footpath  leading  from  one  road  to  another,  but 
these  roads  were  legally  stopped  by  orders  of  Quarter  Sessions, 
and  the  question  was  whether  the  public  right  of  way  over 
the  footpath  still  remained.  It  was  held  that  it  was  de- 
stroyed, for  that  though  it  had  been  decided  in  previous  cases 
tliat  the  stoppage  of  one  end  of  a  public  road  did  not  destroy 
the  right,  yet  that  when  both  ends  were  stopped  so  that  the 
public  could  not  get  access  to  the  way  it  had  lost  its  character 
of  a  highway,  and  the  right  must  be  held  to  be  destroyed. 
"Whether  such  a  point  can  arise  in  the  case  of  a  private  way 
it  is  difficult  to  say,  but  possibly  it  might.  As,  however,  one 
end  of  a  private  way  is  generally,  if  not  always,  at  the  domi- 
nant tenement,  it  is  difficult  to  conceive  that  that  end  could 
be  stopped,  though  the  other  end  might ;  as,  for  instance,  if 
it  were  at  a  public  highway  which  was  diverted.  It  is,  how- 
ever, possible  that,  although  the  end  next  the  dominant  tene- 
ment could  not  get  stopped  while  the  dominant  tenement  con- 
tinued in  existence,  yet  that  a  piece  of  a  path  might  be  cut 
off  from  the  rest,  as,  for  instance,  by  a  landslip  or  by  diver- 
sion and  stopping  up  of  a  public  way  crossing  it  or  otherwise, 
and  the  question  would  then  arise  whether  the  easement  re- 

1  Lovell  V.  Smith,  3  C.  B.  N.  S.  120  (1857).     And  see  Wright  v.  Free- 
man, 5  H.  &  J.  475. 
»  1  C.  P.  D.  329. 


492      EXTINCTION,   SUSPENSION,   AND   REVIVAL    OF   EASEMENTS. 

mained  over  the  part  of  the  path  cut  off.  On  the  ground  that 
a  right  of  way  can  only  be  destroyed  if  a  release  can  be  im- 
plied, could  a  release  be  implied  in  such  a  case  ?  Probably  it 
could,  for  if  a  way  becomes  inaccessible  it  would  most  likely 
be  taken  to  be  abandoned  as  useless,  and  for  the  purpose  of 
such  abandonment  a  release  would  be  implied. 


APPENDIX. 


THE   PRESCRIPTION   ACT, 

2  &  3  Wm.  IV.  c.  71. 

An  Act  for  shortening  the  Time  of  Prescription  in  Certain  Cases. 

[1st  August,  1832. 

"Whereas  the  expression   "  Time  immemorial,  or   time  whereof 
the  memory  of  man  runneth  not  to  the  contrary,"  is  now  by  the  law 
of  England  in  many  cases  considered  to  include  and  denote  the  whole 
period  of  time  from  the  reign  of  King  Richard  the  First,  whereby  the 
title  to  matters  that  have  been  long  enjoyed  is  sometimes  defeated 
by  showing  the  commencement  of  such  enjoyment,  which  is  in  many 
cases  productive  of  inconvenience  and  injustice ;  for  remedy  thereof 
be  it  enacted  by  the  king's  most  excellent  majesty,  by  and  with  the 
advice  and  consent  of  the  lords  spiritual  and   temporal,  and  com- 
mons, in  this  present  Parliament  assembled,  and  by  the  authority  of 
the  same,  that  no  claim  which  may  be  lawfully  made  at    claims  to 
the  common  law,  by  custom,  prescription,  or  grant,  to  any    ^'^S^^  "^ 
right  of  common  or  other  profit  or  benefit  to  be  taken  and    and  other 
enjoyed  from  or  upon  any  land  of  our  sovereign  lord  the   pUndi-e 
king,  his  heirs  or  successors,  or  any  land  being  parcel  of   not  to  be 
'  the  Duchy  of  Lancaster  or  of  the  Duchy  of  Cornwall,  or   after  thirty 
of  any  ecclesiastical  or  lay  person,  or  body  corporate,  ex-   ;-oy,^,'*eut'bv 
cept  such  matters  and  things  as  are  herein  specially  pro-   showing 
vided  for,  and  except  tithes,  rent,  and  services,  shall,  where    mence- 
8uch  right,  profit,  or  benefit  shall  have  been  actually  taken    ™^°'  = 
and  enjoyed  by  any  person  claiming  right  thereto  without  interrup- 
tion for  the  full  period  of  thirty  years,  be  defeated  or  destroyed  by 
showing  only  that  such  right,  profit,  or  benefit  was  first  taken  or  en- 
joyed at  any  time  prior  to  such  period  of  thirty  years,  but  neverthe- 


494  APPENDIX. 

less  such  claim  may  be  defeated  in  any  other  way  by  which  the  same 
is  now  liable  to  be  defeated  ;  and  when  such  right,  profit, 
years'  eu-  or  benefit  shall  have  been  so  taken  and  enjoyed  as  afore- 
tPTi^'-'hu  ^^"^  ^^^  *'^^  ^"^^  period  of  sixty  years,  the  right  thereto 
be  abso-  shall  be  deemed  absolute  and  indefeasible,  unless  it  shall 
less'hadby    appear  that  the  same  was  taken  and  enjoyed  by  some  con- 

consent  or     ggj^j.  ^j.  agreement  expressly  made  or  given  for  that  pur- 
agreement.  ^  J.  ./  o 
pose  by  deed  or  writing. 

II.  And  be  it  further  enacted,  that  no  claim  which  may  be  lawfully 

In  claims      made   at   the   common   law,  by   custom,  prescription,   or 

of  right  of  prrant,  to  any  way  or  other  easement,  or  to  any  water- 
way or  to'  p  •         T  1     •       ^ 

other  ease-  course,  or  the  USB  of  any  water,  to  be  enjoyed  or  derived 
periods  to  upon,  over,  or  from  any  land  or  water  of  our  said  lord  the 
be  twenty  king,  his  heirs  or  successors,  or  being  parcel  of  the  Duchy 
forty  of  Lancaster  or  of  the  Duchy  of  Cornwall,  or  being  the 

years.  property  of  any  ecclesiastical  or  lay  person,  or  body  cor- 

porate, when  such  way  or  other  matter  as  herein  last  before  men- 
tioned shall  have  been  actually  enjoyed  by  any  person  claiming  right 
thereto  without  interruption  for  the  full  period  of  twenty  years,  shall 
be  defeated  or  destroyed  by  showing  only  that  such  way  or  other  mat- 
ter was  first  enjoyed  at  any  time  prior  to  such  period  of  twenty  years, 
but  nevertheless  such  claim  may  be  defeated  in  any  other  way  by 
which  the  same  is  now  liable  to  be  defeated  ;  and  where  such  way  or 
other  matter  as  herein  last  before  mentioned  shall  have  been  so  en- 
joyed as  aforesaid  for  the  full  period  of  forty  years,  the  right  thereto 
shall  be  deemed  absolute  and  indefeasible,  unless  it  shall  appear  that 
the  same  was  enjoyed  by  some  consent  or  agreement  expressly  given 
or  made  for  that  purpose  by  deed  or  writing. 

III.  And  be  it  further  enacted,  that  when  the  access  and  use  of 
.  light  to  and  for  any  dwelling-house,  workshop,  or  other 

the  use  of  buildings  shall  have  been  actually  enjoyed  therewith  for 

ioved^for  ^^^  ^"^^  period  of  twenty  years  without  interruption,  the 

twenty  right   thereto  shall  be  deemed  absolute  and  indefeasible, 

feasible,  any  local  usage  or  custom  to  the  contrary  notwithstanding, 

unless  unless  it  shall  appear  that  the  same  was  enjoyed  by  some 

have  been  consent  or  agreement   expressly  made  or  given  for  that 

by  consent.  i        n       i 

purpose  by  deed  or  writing. 

IV.  And  be  it  further  enacted,  that  each  of  the  respective  periods 
Before  ^^  years  hereinbefore  mentioned  shall  be  deemed  and 
mentioned     taken  to  be  the  period  next  before  some  suit   or  action 

periods  to  ,         .       ,        i    .  ,  .   ,  ,  .    -, 

be  deemed    w^herein  the  claim  or  matter  to  which  such  period  may  re- 


PRESCRIPTION   ACT,   2   &   3   WM.  IV.   C.   71. 


495 


In  actions 
on  the  case 
the  claim- 
ant may 
allege  his 
right  gen- 1 
erally,  as 


late  shall  have  been  or  shall  be  brought  into  question,  and   Jhose  next 

DcforB  suits 

that  no  act  or  other  matter  shall  be  deemed  to  be  an  inter-    for  claims 
ruption,  within  the  meaning  of  this  statute,  unless  the  same    such^neri- 
shall  have  been  or  shall  be  submitted  to  or  acquiesced  in    ods  relate. 
for  one  year  after  the  party  interrupted  shall  have  had  or  shall  have 
notice  thereof,  and  of  the  person  making  or  authorizing  the  same  to 
be  made. 

V.  And  be  it  further  enacted,  that  in  all  actions  upon  the  case 
and  other  pleadings,  wherein  the  party  claiming  may  now 
by  law  allege  his  right  generally,  without  averring  the  ex- 
istence of  such  right  from  time  immemorial,  such  general 
allegation  shall  still  be  deemed  sufficient,  and  if  the  same 
shall  be  denied,  all  and  every  the  matters  in  this  act  men- 
tioned and  provided,  which  shall  be  applicable  to  the  case,    ^^  present. 
shall  be  admissible  in  evidence  to  sustain  or  rebut  such  allegation ; 
and  that  in  all  pleadings  to  actions  of  trespass,  and  in  all    jn  pieas  to 
other  pleadings  wherein  before  the  passing  of  this  act  it   trespass 
would  have  been  necessary  to  allege  the  right  to  have  ex-    pleadings 
isted  from  time  immemorial,  it  shall  be  sufficient  to  allege 
the  enjoyment  there  of  asof  right  by  the  occupiers  of  the 
tenement  in  respect  whereof  the  same  is  claimed  for  and 
during  such  of  the  periods  mentioned  in  this  act  as  may  be 
applicable  to  the  case,  and  without  claiming  in  the  name    riod  men- 
or  right  of  the  owner  of  the  fee,  as  is  now  usually  done ;    this  act 
and  if  the  other  party  shall  intend  to  rely  on  any  proviso    ,"^^^,^^  ^V 
exception,  incapacity,  disability,  contract,    agreement,   or    exceptions 
other   matter  hereinbefore  mentioned,  or  on  any  cause  or    matters  to 
matter  of  fact  or  of  law  not  inconsistent  with  the  simple    be  replied 
fact  of  enjoyment,  the  same  shall  be  specially  alleged  and    ly. 

set  forth  in  answer  to  the  allegation  of  the  party  claiming,  and  shall 
not  be  received  in  evidence  on  any  general  traverse  or  denial  of  such 
allegation. 

VI.  And  be  it  urther  enacted,  that  in  the  several  cases  mentioned 
in  and  provided  for  by  this  act,  no  presumption  shall  be 
allowed  or  made  in  favor  or  support  of  any  claim,  ujjon    the  pre- 
proof  of  the  exercise  or  enjoyment  of  the  right  or  matter    s""ipt'on 
claimed  for  any  less  period  of  time  or  number  of  years    lowed  in 
than  for  such  period  or  number  mentioned  in  this  act,  as    claims^ 
may  be  applicable  to  the  case  and  to  the  nature  of  the    lierem  pro- 
claim. 

VII.  Provided  also,  that  the  time  during  which  any  person  other- 


where 

party  used 
to  allege 
his  claim 
from  time 
immemo- 
rial, the  pe- 


496  APPENDIX. 

wise  capable  of  resisting  any  claim  to  any  of  the  matters  before  men- 

„  .  ,  tioned  shall  have  been  or  shall  be  an  infant,  idiot,  non 
Proviso  for  tp  i      . 

infants,         compos  mentis,  feme  covert,  or  tenant  for  life,  or  dunng 
'^'  which  any  action  or  suit  shall  have  been  pending,  and  which 

shall  have  been  diligently  prosecuted,  until  abated  by  the  death  of 
any  party  or  parties  thereto,  shall  be  excluded  in  the  computation  of 
the  periods  hereinbefore  mentioned,  except  only  in  cases  where  the 
right  or  claim  is  hereby  declared  to  be  absolute  and  indefeasible. 

VIII.  Provided  always,  and  be  it  further  enacted,  that  when  any 
What  time  ^^^^  ^^  water  upon,  over,  or  from  which  any  such  way  or 
to  \)e  ex-  other  convenient  watercourse  or  use  of  water  shall  have 
computing  been  or  shall  be  enjoyed  or  derived  hath  been  or  shall  be 
the  term  of   jjgjd  under  or  by  virtue  of  any  term  of  life,  or  any  term  of 

forty  years  _     *'  •'  . 

appointed  years  exceeding  three  years  from  the  granting  thereof,  the 
J  IS  ac  .  ^jj^^  ^£  ^^^  enjoyment  of  any  such  way  or  other  matter  as 
herein  last  before  mentioned,  during  the  continuance  of  such  term, 
shall  be  excluded  in  the  computation  of  the  said  period  of  forty  years, 
in  case  the  claim  shall  within  three  years  next  after  the  end  or  sooner 
determination  of  such  term  be  resisted  by  any  person  entitled  to  any 
reversion  expectant  on  the  determination  thereof. 
Not  to  ex-        IX.  And  be  it  further  enacted,  that  this  act  shall  not 

tend  to  extend  to  Scotland  or  Ireland. 

bcotland  or 

Ireland.  X.  And  be  it  further  enacted,  that  this  act  shall  com- 

Com-  mence  and  take  effect  on  the  first  day  of  Michaelmas  term 

mencement 
"of  act.  iiow  next  ensumg. 

Act  may  be        ^I*  And  be  it  further  enacted,  that  this  act  may  be 

amended,      amended,  altered,  or  repealed  during  this  present  session 

of  Parliament. 


INDEX. 


ABANDONMENT. 

Extinction  of  easements  by  abandonment,  460,  477. 

Release  must  be  capable  of  being  implied,  460,  477. 
Not  implied  from  non-user  alone,  461. 
When  implied  on  cessation  of  user,  462. 
Cases  in  which  non-user  is  the  only  evidence  of  aban- 
donment, 464. 
In  what  cases  implied   after  non-user  for  less   than 
twenty  years,  465,  478. 
Abandonment  can  only  occur  after  an  easement  has  actually 

been  acquired,  466. 
Temporary  agreement  to  suspend  user  negatives  presumption 

of  abandonment,  467. 
So  also  temporary  substitution  of  a  new  mode  of  enjoyment  for 

the  sake  of  convenience,  467,  468. 
Right  of  dominant  owners  to  abandon  easements,  468. 
ABATEMENT. 

Right  to  abate  an  obstruction  of  an  easement,  406. 
ACQUIESCENCE. 

Licenses  implied  from  acquiescence,  91. 

Acquiescence,  though  not  sufficient  for  such  implication,  some- 
times sufficient  to  prevent  a  right  to  interfere  with  an  ease- 
ment, 91. 
Acquiescence  in  interruption  required  by  the  Prescription  Act 

to  bar  prescription,  178,  179. 
Acquiescence  in  pollution  of  air  and  water  sometimes  prevents 
remedy,  364,  382. 
ACQUISITION. 

Easements  acquired  through  an  act  of  man,  86. 
Natural  rights  not  so  acquired,  86. 
Act  of  creation  and  acquisition  often  implied,  S6. 
In  what  cases  implied,  87. 
32 


498  INDEX. 

ACQUISITION—  con^mwet/. 

Modes  of  acquiring  easements,  87. 

Qucere  :  Whether  a  grant  is  not  always  implied,  87. 
Easements  the  same  by  whatever  mode  acquired,  88. 
Necessity  for  a  deed  for  acquisition  of  easements,  88,  90. 
Contract  for  an  easement  not  under  seal,  88,  90. 
Licenses,  how  acquired,  90. 
Grant  by  parol,  90. 

Implied  from  acquiescence,  91.  , 

Implied  from  surrounding  circumstances,  92. 
Acquisition  of  Easements  by  Grant,  92.     (See  Grant.) 
Acquisition  by  virtue  of  an  Act  of  Parliament,  128.     (See  Act 

OF  Parliament.) 
Acquisition  under  a  Devise,  131.     (See  Devise.) 
Acquisition  by  Prescription,  131,  132.      (See   Prescription 

and  Prescription  Act.) 
Acquisition  under  a  Custom,  183.     (See  Custom.)  • 
ACTION. 

Breach  of  contract  for  an  easement,  88,360. 

No  right  of  action  for  previous  trespass  after  an  easement  has 

been  acquired  by  prescription,  145. 
Prescriptive  user  must  be  next  before  action,  147-149. 
Right  of  action  for  disturbance  of  easements,  354,  355. 
Damage  requisite  to  support  an  action,  355,  397,  416,  422. 

Effect  of  absence  of  damage  if  the  time  for  suing  is  lim- 
ited, 355,  356. 
Damage  must  be  substantial,  355,  356. 

Slight  damage  by  many  persons,  356. 
Disturbance  of  an  easement  is  an  injury  to  the  right,  which 

gives  a  cause  of  action,  356. 
So  also  disturbance  of  a  natural  right,  357. 
When  the  occupier  of  a  dominant  tenement  alone  can  sue, 

358. 
When  a  reversioner  can  sue,  359,  394. 
Action  for  continuing  a  disturbance,  360,  396,  427. 
Injunctions,  when  granted  by  the  court,  363.      (See  Injunc- 
tion.) 
See,  also.  Air  ;  Light  ;  Support  ;  Use  op  Water  ;   Pollu- 
tion OF  Water  ;  Streams  ;  Ways. 
ACT  OF  PARLIAMENT. 

Easements  acquired  by  virtue  of  acts  of  parliament,  87,  128. 


INDEX.  499 

ACT   OF   PARLIAMENT  — cow^^7^Me(f. 

By  the  express  terms  or  the  apparent  intention  of  the  act, 

128. 
Immediately,  or  on  the  happening  of  an  event,  129. 
Grant  at  variance  with  an  act,  109,  278. 
Grant  partly  at  variance  with  an  act,  278. 
No  prescription  at  variance  with  an  act,  158,  279. 

Prescription  partly  at  variance  with  an  act,  279. 
See,  also,  Railway  Clauses  Act,  1845. 
ACTUAL  DAMAGE. 

Necessary  for  cause  of  action  in  certain  cases  for  disturbance 
of  easements,  355. 
"ACTUAL"  ENJOYMENT. 

"  Actual  "  enjoyment  required  by  the  Prescription  Act,  143. 

Actual  user  for  nineteen  years  and  a  part  only,  143. 
Light  actually  enjoyed  though  the  house  uninhabitable,  210. 
ADJACENT  SUPPORT. 

Natural  right  to  adjacent  support,  33. 
See,  also.  Support. 
AGREEMENT. 

Suspension  of  user  by,  178.     (See  Contract.) 
AIR. 

Rights  in  connection  with  the  air,  28. 

Free  passage  of  air,  28,  31-33,  187,  189. 
Right  to  air  is  an  easement,  33. 
Right  to  obstruct  air,  33. 
Purity  of  air,  29. 
Right  to  pollute  air,  29,  188. 
Limit  of  right  to  purity  of  air,  29,  286. 
Pollution  by  reasonable  use,  30. 
Pollution  by  carrying  on  trade,  30. 
Air  compared  with  light  and  water,  31. 

Right  to  free  passage  of  air  subordinate  to  the  right  to  build, 
33,  187. 

Opening  new  windows  to  admit  air,  -32,  190. 
Right  to  obstruct  air  from  new  windows,  32,  190. 
Prescriptive  right  to  an  uninterrupted  flow  of  air,  138,  187. 
Implied  grant  of  right  to  pollute  air,  188. 
Prescriptive  right  to  pollute  air,  188. 

Qucere:  Whether  the  right  can  be  acquired   under  the 
Prescription  Act,  140. 


600  INDEX. 

AIR  —  continued. 

Implied  grant  of  right  to  an  uninterrupted  flow  of  air,  190. 

Not  implied  from  suffering  windows  to  be  opened  by  a 

neighbor,  190. 
Partition  of  land  and  houses,  191. 

Sale  of  house  reserving  adjoining  land,  191. 
Sale  of  land  reserving  house,  191. 
Sale  of  house  and  land  simultaneously,  192. 
Covenant  for  quiet  enjoyment,  202. 
Open  ground  ;  prescriptive  right  to  flow  of  air,  216. 
Eight  of  action  for  obstruction,  369. 
Free  passage  of  air  and  light  distinguished,  369. 
Injunctions,  when  granted  for  obstruction  of  air,  370. 
Pollution  ;  right  to  sue  for,  370. 

Pollution  must  be  unjustifiable,  371. 

Air  previously  polluted  by  other  means,  372. 
Coming  to  a  place  where  the  air  is  polluted,  372.         \ 
Unavoidable  pollution  by  trade,  373. 
Result  of  authorities,  379. 
Public  nuisance  by  pollution,  381. 
Right  of  action  by  reversioner  for  pollution,  381. 
Acquiescence  in  pollution  prevents  an  injunction,  382. 
ALTERATION. 

Of  easements  must  be  material,  453. 
Of  place  of  access  to  a  way,  320. 
Trifling  alteration,  455. 
ALTERATION  OF  DOMINANT  TENEMENTS. 
Easements  cannot  be  increased  by  alteration,  280. 
Opening  new  and  increasing  ancient  windows,  32,  290.     (See 

Light.) 
Improving  condition  of  windows  to  obtain  more  light,  291. 
Right  to  divert  part  of  a  stream ;  alteration  of  mill,  307. 
Alteration  of  place  of  access  to  a  way,  320. 
Easements  frequently  lost  by  alteration,  452. 
Alteration  must  be  material,  452. 
Trifling  alteration  has  no  effect,  455. 
APPARENT  EASEMENTS. 

Implied  grant  on  partition  of  an  estate,  115. 
APPROPRIATION  OF  WATER. 

No  right  to  underground  water  acquired  by  appropriating  it  in 
a  well,  64,  252. 


INDEX.  501 

APPROPRIATION   OF   WATEU  —  co7itinued. 

Acquisition  of  easements  in  flowing  water  by  appropriation,  251. 
Effect  of  appropriation  on  right  to  sue  for  disturbance  of  natu- 
ral rights,  252. 
Appropriation  of  water  in  a  well,  252. 

Appropriation  of  the  water  of  artificial  streams  ;  right  to  sue 
for  pollution,  254,  439. 
APPURTENANCES. 

What  easements  will  pass  to  a  purchaser  as  appurtenances,  98, 

283. 
^Mosi-easements  used  by  a  vendor  during  unity  of  ownership 
do  not  pass,  98. 

Exceptional  cases,  102. 
ARTIFICIAL  STREAMS. 

Defined  and  distinguished  from  natural  streams,  48. 
Temporary  and  permanent,  243. 
See,  also,  Streams. 
"AS  OF  RIGHT." 

To  raise  a  presumption  of  lost  grant  user  must  have  been  "  as 

of  right,"  113. 
For  prescription  user  must  have  been  "  as  of  right,"  169. 

Except  in  the  case  of  light,  213. 
Prescription  Act :  "  as  of  right ; "  "  claiming  right  thereto,"  169. 
User  by  permission  or  by  stealth  not  "as  of  right,"  172. 
Nor  unless  peaceably  enjoyed,  172. 

Interruptions  evidence  against  peaceable  enjoyment,  173. 
Interruption  in  enjoyment  "  as  of  right "  defeats  prescription, 
174. 
ASSIGNMENT,  283. 

See  Transfer  of  Easements. 
ATTEMPTS  to  create  new  species  of  easements,  77. 

BREACH  of  contract  for  an  easement  not  under  seal,  90,  360,  361. 
BUILDINGS. 

Effect  of  building  on  natural  right  to  support  for  land,  38. 
No  natural  right  to  support  for  buildings,  41. 
Right  to  support  from  land  may  be  acquired,  41,  227. 
Effect  of  contiguity  of  buildings,  43. 

Obligation  to  usecare  when  removing  one  of  two  adjoining 
buildings,  43. 

No  obligation  to  shore,  or  give  notice  of  removal,  43,  44. 


502  INDEX. 

BUILDINGS  —  continued. 

Acquisition  of  right  to  support  for  buildings,  227. 

Right  to  support  from  land  and  adjoining  buildings  by  im- 
plied grant,  227. 
Right  to  support  from  land  by  prescription,  229. 

Effect  of  excavation  under  buildings,  229,  230. 
No  right  to  support  from  buildings  by  prescription,  236. 
Limited  right  to  support,  294. 
Natural  right  to  support  for  land ;  effect  of  erecting  buildings, 

38,  409. 
Right  to  sue  for  disturbance  of  an  acquired  right  to  support 
for  buildings,  413. 

Effect  of  increasing  the  weight  of  the  buildings,  414. 

CHANGE    OF   LOCATION   of  ways,  320,  490. 
CHIMNEY. 

Right  to  use  another  person's  chimney  an  easement,  78  (u). 
"CLAIMING  RIGHT  THERETO." 

Prescription  Act :  "  as  of  right ; "  "  claiming  right  thereto,"  169. 

See,  also,  "  As  of  Right." 
CLOTHES   LINES. 

Right  to  fasten,  and  dry  linen,  an  easement,  78  (w). 
COMING  TO  A  PLACE  where  air  is  polluted,  372. 
COMPLETION  of  the  purpose  of  a  grant,  451. 
CONSTRUCTION. 

Grant  of  inconsistent  easements,  24, 

Sale  of  land  and  "  appurtenances,"  98. 

Sale  of  land  with  easements  "  used  and  enjoyed,"  103. 

The  word  "  grant "  not  essential  in  a  deed  of  grant,  108. 

Easements  excepted  or  reserved  on  sale  of  land,  108, 

Grant  at  variance,  or  partly  at  variance,  with  an  act  of  parlia- 
ment, 109,  278. 

Grant  to  become  void  conditionally,  109. 

Grants  construed  most  strongly  against  the  grantor,  277. 
CONTINUOUS   EASEMENTS. 

Implied  grant  on  partition  of  an  estate,  115. 
CONTINUOUS   ENJOYMENT. 

Prescriptive  user  must  be  continuous,  174. 
Need  not  be  incessant,  174. 

Exclusion  from  computation  of  periods   of  disability  no 
breach  of  continuity,  153. 

An  interruption  and  a  breach  of  continuity  distinguished,  175. 


INDEX.  503 

CONTRACT. 

Contract  for  an  easement  not  under  seal,  valid,  90,  360. 
See,  also,  Licenses  ;  Covenant. 
COPYHOLD. 

Grant  by  copyholder  of  right  to  deprive  land  of  necessary  sup- 
port, void,  225. 
COVENANT. 

For  rights  not  recognized  as  easements,  22,  78. 

Covenants  by  landowners,  89. 

Agreement  under  seal  for  use  of  a  way,  not  merely  a  covenant 

for  quiet  enjoyment,  96  (v). 
Effect  of  covenant  for  quiet  enjoyment,  202. 
Effect  of  this  covenant  on  grants   of  easements  by  general 

words,  399. 
See,  also,  Licenses, 
CUSTOM. 

Custom  distinguished  from  easements,  18. 
Easements  acquired  by  virtue  of  customs,  19,  87,  184. 
Acquisition  under  the  Prescription  Act,  21,  185. 
Claims  both  by  prescription  and  under  a  custom,  185. 
Customs  must  be  reasonable  and  certain,  185. 
Obstruction  of  ancient  light  under  custom  of  London,  210. 
Custom  to  deprive  land  of  necessary  support  when  mining, 
unreasonable,  224. 
CUTTING  ICE,  298,  299. 
Cummings  v.  Barrett,  298. 

DAMAGE. 

Actual  damage  requisite  to  support  an  action,  355. 

Effect  of  absence  of  damage  if  the  time  for  suing  is  limited, 

355. 
Damage  must  be  substantial,  356. 

Slight  damage  by  many  persons,  356. 
Disturbance  of  an  easement  an  injury  to  the  right  which  gives 

a  cause  of  action,  356. 
So,  also,  disturbance  of  natural  right,  357. 
DAMAGES. 

In  what  cases  awarded  formerly  by  the  court  of  chancery,  365. 
-  In  America,  366-368. 
DECREASING  the  width  of  private  ways,  332. 
The  American  rule,  333-337. 


604  INDEX. 

DEDICATION,  OR  PUBLIC  PRESCRIPTION. 

Private  rights  of  way  not  created  by  dedication,  262. 

The  public  take  by  dedication,  263. 

The  public  may  acquire  rights  in  or  over  the  lands  of  individ- 
uals, 180. 

The  public  acquire  these  "by  dedication,"  181. 

The  doctrine,  though  modern,  is  well  established,  181. 

The  power  of  the  owner  to  interfere  with  the  right  of  the  pub- 
lic is  gone,  181. 

The  owner  does  not  ordinarily  lose  the  fee,  181. 

The  dedication  need  not  be  formal  or  in  writing,  182. 

Any  acts  plainly  showing  an  intention  are  sufficient,  182. 

The  public  not  liable  until  the  right  is  accepted,  182. 

No  particular  length  of  time  is  essential,  183. 

Statutes  exist  in  some  states,  183. 
DEED. 

Easements  can  only  be  granted  or  transferred,  by  deed,  3,  88, 
283. 

Deeds  alone  formerly  called  writings,  3  (d). 

Contract  for  an  easement,  not  under  seal,  valid,  90,  360. 

Licenses  granted  by  deed,  90. 
DEROGATION   FROM   GRANT. 

Derogation  from  grant,  by  preventing  user  of  an  easement,  94. 
DEVIATE,  RIGHT   TO,  for  want  of  repairing  easement,  342. 

The  American  rule,  343. 

Grounds  of  the  rule,  343. 
DEVISE. 

Easement  acquired  under  a  devise,  87,  131. 

Construction  of  wills,  131. 
DIRECTION  of  ways  of  necessity,  348. 

Variation  of  direction  of  ways  of  necessity,  350. 

The  law  in  America,  350,  351. 
DISABILITY. 

See  Incapacity. 
DISTRIBUTION  OF    EASEMENTS. 

Partition  of  riparian  land ;  distribution  of  riparian  rights,  53, 
310. 

Partition  of  dominant  tenements ;   distribution  of  easements, 
337. 
DISTURBANCE   OF   EASEMENTS. 

Prima  facie  right  to  be  free  from  disturbance,  354. 


INDEX.  605 

DISTURBANCE   OF   EAS^ME^TS  —  continued. 

Actions  for  disturbance,  354-360.     (See  Action.) 

Breach  of  contract  for  an  easement,  360. 

Excessive  user,  when  a  justification  for  disturbance,  361. 

See,  also,  Air  ;  Light  ;  Streams  ;  Support  ;  Pollution  of 
Water:  Use  op  Water;  Ways. 
DIVERSION   OF   STREAMS. 

Natural  right  to  the  uninterrupted  flow  of  streams,  56. 
Right  to  divert  may  be  acquired,  56,  249. 

Natural  right  to  divert  for  use,  58. 

Obligation  to  return  diverted  water  to  the  stream,  58. 

Right  to  divert  flood  water,  58. 

Right  to  divert  the  flow  of  the  sea  for  protection  of  land,  58. 

Right  to  divert  tidal  rivers  for  protection  of  land,  60. 

Right  to  divert  part  of  a  stream,  302. 

See,  also.  Streams. 
DOMINANT   OWNER. 

Who  is,  11. 

Incapacity  of  dominant  owner  to  take  by  grant  rebuts  prescrip- 
tion, 163. 
DOMINANT  TENEMENT. 

What  is,  11. 

Essential  for  the  existence  of  easement,  8. 

Must  be  distinct  property  from  the  servient  tenement,  11. 
Easements  between  landlord  and  tenant,  13,  14. 
Between  tenants  of  same  landlord,  13. 

Easements  cannot  be  severed  from  dominant  tenements,  9. 

Not  universally  true  in  America,  10. 

Easements  must  be  beneflcial  to  them,  14. 

Easements  can  only  be  used  in  connection  with  them,  321. 

Effect  on  easements  of  partition  of  their  dominant  tenements, 
337. 

The  American  law,  339. 
DRAINAGE   OF   LAND. 

Destruction  of  support  by  drainage,  41,  226. 

Right  to  drain  away  surface  and  underground  water,  55,  243. 
DRAINS. 

Pollution  of  streams  by  public  sewers,  436. 

EASEMENT. 

Misuse  of  the  word  "Easement,"  1. 


506  INDEX. 

EASEMENT  —  continued. 
Definition,  2. 
Various  definitions  of,  2. 
Distinguished  from  natural  rights,  2,  88. 
Distinguished  from  licenses,  3,  4.     (See  Licenses.) 
Modes  of  creation  and  acquisition  of  easements,  87. 
Can  only  be  granted  by  deed,  3,  SB- 
Assignment  of  easements,  283.     (See  Transfer.) 
Is  a  privilege  only,  not  an  interest  in  land,  4. 
Same  is  true  in  the  case  of  public  ways,  5. 
Exclusive  use  of  land  not  an  easement,  5. 
Without  profit,  6,  7. 

Easements  in  gross  unknown  to  the  law,  7. 
Not  universally  true  in  America,  10. 
Cannot  be  severed  from  its  dominant  tenement,  10,  321. 
Dominant  and  servient  tenements  must  be  distinct,  11. 

Prescriptive  rights  between  landlord  and  tenant  impossi- 
ble, 12. 

Easements  by  grant  of  landlord  possible,  14. 

Prescriptive  rights  between  tenants  of  same  landlord  pos- 
sible, 13. 
Must  be  beneficial  to  its  dominant  tenement,  14. 
No  easement  for  the  benefit  of  the  servient  tenement,  16. 
Nature  of  the  obligation  on  the  servient  owner,  17. 
Distinguished  from  customs,  18. 
May  be  acquired  by  virtue  of  customs,  19,  184. 
New  species  of  easements  not  recognized  by  law,  21,  77. 
Remedy  only  for  breach  of  covenant,  22,  23. 
Effect  of  easements  on  natural  rights,  23. 
Frequently  adverse  to  natural  rights,  23. 
Inconsistent  easements,  24,  280. 

Cannot  coexist,  24. 

Release  presumed  from  inconsistent  user,  25. 
Subordinate  easements,  25. 

Easements  of  necessity,  25.     (See  Necessity,  Easements  of.) 
No  hindrance  to  consistent  use  of  land,  280. 
Meaning  of  "  Easement  "  in  Prescription  Act,  138. 

Uninterrupted  flow  of  air,  138. 

Support,  140. 

Pollution  of  air,  140. 
Acquisition  of  easements,  87.     (See  Acquisition.) 


INDEX.  507 

EASEMENT  —  continued. 

Easements  and  their   incidents  the  same  by  whatever  mode 
acquired,  87. 

Distribution  on  partition  of  dominant  tenements,  337. 

See,  also,  the  respective  titles  thi'oughoiit  the  Index. 
EASEMENTS   OF   NECESSITY,  25. 

See  Necessity,  Easements  of. 
EAVES,  drip  of,  251. 

ENLARGING  the  size  or  increasing  the  number  of  windows,  290. 
ESTOPPEL. 

Estoppel  from  denying  an  easement,  95. 

Same  rule  of  law  prevails  in  America,  95. 
EXCAVATION. 

Excavation  of  subsoil ;  effect  on  natural  right  to  adjacent  sup- 
port, 38. 

Excavation  under  houses,  38. 

Easement  of  support  for  excavated  land,  43. 

Right  to  let  down  surface  land  by  excavating,  44. 

See,  also,  Mines  ;  Suppokt, 
EXCEPTION. 

Operation  of  an  exception  of  an  easement  on  sale  of  land,  108. 
EXCESSIVE   USER. 

See  Mode  of  User. 
EXTENT  OF  EASEMENTS. 

Natural  rights  limited  by  each  other,  274. 

Abridged  and  suspended  by  easements,  275. 

Measure  of  easements  created  by  deed,  275. 

Surrounding  circumstances  to  be  considered,  276,  277. 

Grants  construed  most  strongly  against  the  grantor,  277. 

Measure  of  easements  acquired  by  prescription,  276,  316. 

Surrounding  circumstances  to  be  considered  with  user,  277. 

Grant  partly  at  variance  with  an  act  of  parliament,  278. 

Prescription  partly  at  variance  with  an  act  of  parliament,  279. 

Easements  do  not  prevent  the  consistent  use  of  land,  280. 

Increase  of  easements  by  alteration  of  dominant   tenements, 
280. 

Right  to  prevent  excessive  user,  281,  309. 

Assignment  of  easements,  283. 

Natural  rights  always  pass  with  land,  283. 
Easements  can  only  be  transferred  by  deed,  283. 
Severance  of  easements  from  their  dominant  tenements, 
10,  321. 


508  INDEX. 

EXTENT   OF   EAS'EMF.'NTS  —  continued. 
The  rule  in  America,  10,  321. 
Assignment  of  riparian  rights  apart  from  their  dominant 

tenements,  310. 
Distribution  of  riparian    rights   on   partition   of  riparian 

land,  310. 
Distribution  of  easements  onjpartition  of  their  dominant 
tenements,  337. 
Extent  of  a  right  of  way,  328. 

See  Mode  of  User,  a7id  the   respective  titles  throughout 
the  Index. 
EXTINCTION. 

On  acquisition  of  an  inconsistent  easement,  24. 

Natural  rights  cannot  be  extinguished  but  may  be  suspended, 

448. 
Easements  may  be  extinguished  or  suspended,  448. 

Revive  after  suspension  but  not  after  extinction,  448,  475. 
Modes  by  which  easements  may  be  extinguished,  449. 

1.  By  act  of  parliament,  450. 

2.  By  operation  of  law,  451. 

Completion  of  the  purpose  of  a  grant,  451. 

Easements  of  necessity  extinguished  on  termination  of  the 

necessity,  452. 
Alteration  of  the  dominant  tenement,  452. 

Extinction  only  if  alteration  is  material,  453. 

Not  if  trifling,  455. 
Unity  of  seisin,  457. 

Necessity  for  unity  of  seisin,  457. 

And  for  estates  in  fee  simple,  459. 

Unity  of  possession  and  enjoyment  not  material,  460. 

3.  By  the  act  of  the  dominant  owner,  460. 

Release  and  abandonment,  460,  477. 

Non-user  alone  not  conclusive  evidence  of  abandonment, 

461. 
When   abandonment   is   presumed   on   cessation  of  user, 

462. 
Cases  in  which  non-user  is  the  only  evidence  of  a  release, 

462. 
Abandonment  presumed  sometimes  after  non-user  for  less 

than  twenty  years,  465. 
Release  or  abandonment  when  possible,  466. 


INDEX.  509 

EXTINCTION  —  continued. 

Temporary  agreement  to  suspend  user,  467. 
Substitution  of  a  new  method  of  enjoyment  for  conven- 
ience, 467. 

FEME  COVERT. 

'  Exclusion  of  periods  during  marriage  when  computing  prescrip- 
tive periods,  152. 
FISH. 

Right  to  take  fish,  a  projtt  a  prendre,  7. 
FLOODS. 

Right  to  protect  land  from  floods,  59. 

Questionable  whether  there  is  liability  for  injury  to  neigh- 
bors, 59  (s). 
Right  to  protect  land  from  the  sea,  59. 
Injury  to  a  neighbor  justifiable,  59. 
Obligation  to  keep  up  sea  walls,  59. 

Injury  to   neighbors  not  justifiable  in  the  case   of  tidal 
rivers,  60. 
Right  to  pour  water  on  another's  land,  61,  249. 
Obligation  to  continue  pouring  such  water,  61,  249. 
FLOW  OF  AIR. 

See  Air. 
FLOW  OF  LIGHT. 

See  Light. 
FLOW  OF  STREAMS. 
See  Streams. 
The  law  in  America,  303. 
FORFEITURE. 

Easements  void  and  voidable,  109. 

GATES   AND   BARS   on  private  ways,  330,  331. 
GENERAL  WORDS. 

General  words  in  a  deed  of  conveyance,  97. ' 

The  American  rule  is  the  same,  99. 

Effect  on  existing  easements  and  quasi-easements  used  by  a 

vendor  during  unity  of  ownership,  97. 
"  Appurtenances,"  what  will  pass  by  grant  of,  100. 
What  will  not  pass,  100. 

^«<asj-easements  will  not  pass  as  "appurtenances,"  101. 
Exceptional  cases,  102. 


510  INDEX. 

GENERAL   WORDS  —  continued. 

"When  quasi-e^sQva&nis  will  pass  under  general  words,  103. 
The  American  law,  120. 

Grant  of  easements  "used  and  enjoyed,"  103. 
Four  distinct  classes  in  America,  120,  121,  122,  124. 
Easements  first  used  and  enjoyed  during  unity  of  owner- 
ship, 103. 
Modification  of  rule,  104. 
Result  of  authorities,  107. 
GRANT. 

Grant  at  variance  with  an  existing  easement,  24. 
Grant  at  variance  with  an  act  of  parliament,  109,  278. 
Grant  of  riparian  rights  by  a  riparian  proprietor,  53,  310. 
Grant  at  variance  with  natural  rights,  57. 
When  a  grant  can  be  implied,  87. 
Acquisition  by  grant,  87,  92. 

Qucere:  whether  the  only  mode  of  acquiring  easements, 
87. 
Grant  of  licenses,  90.     (See  Licenses.) 
Grant  by  one  tenant  to  another,  93. 

Derogation  from  grant  by  preventing  user  of  an  easement,  94. 
Estoppel  from  denying  a  grant  of  an  easement,  95. 
Grant  for  a  limited  period,  96. 
Acquisition  by  express  grant,  96. 

Distinction  on  sale  of  land,  between  easements  in  another's 

soil  and  similar  usages  in  the  vendor's,  97. 
By  particular  description,  97. 

By  general  words,  97-106.     (See  General  Words.) 
The  word  "  grant"  not  essential  in  a  deed,  108. 
Exception  or  reservation  of  an  easement  on  sale  of  land, 

108. 
Conditional  grant,  109. 

Grant  of  way  subject  to  a  right  of  ploughing,  314  (c). 
Acquisition  by  implied  grant,  109,  168. 
No  prescription  at  variance  with  a  grant,  155. 
Prescription  possible  only  when  grant  can  be  presumed,  157. 
Easements  necessary  to   render  a  grant   beneficial,  109, 

275. 
Grant  implied  from  surrounding  circumstances.  111. 
Presumption  of  lost  grant  after  twenty  years'  user,  111, 
132. 


INDEX.  511 

GRANT  —  continued. 

User  must  have  been  as  of  right,  113.     (See  *'  As  of 

Right.") 
Ignorance  of  and  incapability  of  resisting  user,  113. 
Grant  not  presumed  solely  froni  lapse  of  time,  114. 
Surrounding  circumstances  to  be  considered,  114. 
User  by  leave,  or  right  contested,  115. 
No  prescription  adversely  to  a  statute,  159. 
Apparent  and  continuous  easements;   implied   grant    on 
partition  of  an  estate,  115. 
Result  of  the  authorities,  119. 
Implication  of  grant  essential  to  a  prescriptive  title,  132. 
(See  Prescription.) 
Except  in  cases  of  rights  to  light,  211. 
Qucere  :  Whether  implied  in  cases  of  right  to  support, 
230-238. 
Construction  most  strongly  against  grantor,  277. 
GROSS,  RIGHTS  IN. 
Not  easements,  7. 
Easements  cannot  be  severed  from  their  dominant  tenements, 

10,  321. 
Not  universally  true  in  America,  10. 

HIGHWAY,  right  of  way  to,  328. 

IDIOTS. 

Exclusion  of  periods  during  idiotcy  when  computing  prescrip- 
tive periods,  152. 
IGNORANCE. 

Ignorance  of  user  by  servient  owner  prevents  presumption  of 
lost  grant,  113. 

And  prescription,  165. 
IMMEMORIAL  USER. 

Meaning  of,  132. 
IMPLICATION  OF  GRANT. 

Licenses  imijlied  from  acquiescence,  91. 

From  surrounding  circumstances,  92. 

In  what  cases  grants  of  easements  can  be  implied,  109-127. 

See,  also,  Grant  ;  Presumption  ;  Prescription. 
IN  GROSS,  easements,  unknown  to  the  law,  7. 

Not  universally  true  in  America,  10. 


612  INDEX. 

INACCESSIBLE,  ways  becoming,  491. 
INCAPACITY. 

Incapacity  of  servient  owner  to  resist  user  prevents  presump- 
tion of  lost  grant,  113.     (See  Grant.) 
Prescription  Act ;  exclusion  from  prescriptive  periods  of  peri- 
ods of  incapacity,  154.     (See  Prescription  Act.) 
Incapacity  of  servient  owner  to  resist  user  prevents  prescrip- 
tion, 160.     (See  Prescription.) 

Character  of  the  power  of  resistance,  161. 
Qucere  :  In  cases  of  right  to  light,  215. 
Incapacity  of  servient  owner  to  make  a  grant  prevents  prescrip- 
tion, 162. 
Incapacity  of  dominant  owner  to  take  a  grant  prevents  prescrip- 
tion, 163. 
The  law  in  America  is  the  same,  165. 
INCONSISTENT  EASEMENTS. 

See  Easement. 
INCORPOREAL  RIGHT. 

Easements  are  incorporeal  rights,  4. 
Confer  no  interest  in  the  soil,  4. 

Right  to  take  coal,  and  right  to  take  all  coal  distinguished,  5. 
Grant  of  the  exclusive  use  of  land,  5. 
INCREASE  OF  EASEMENTS. 

Alteration  of  dominant  tenements,  280. 

Opening  new  and   increasing  ancient  windows,  32,  190, 

290. 
Improving  the  condition  of  ancient  windows,  291. 
Mill  requiring  more  water  in  consequence  of  alteration, 
308. 
INFANCY. 

Infancy  rebuts  presumption  of  a  grant,  113. 
Exclusion  of  periods  dui'ing  infancy  when  computing  prescrip- 
tive periods,  152. 
INJUNCTION. 

In  what  cases  granted  by  the  court,  363. 

Injunctions  in  America,  366-368. 

Granted  at  the  suit  of  a  person  with  limited  interest,  397. 

When  a  possibility  of  future  injury  only,  401. 

Pollution  of  water  restrained,  437. 

Riparian  owners  must  prove  injury  in  that  character,  439. 
See  the  respective  titles  throughout  the  Index. 


INDEX.  513 

INTERMITTENT   STREAMS. 

What  are,  53. 

Natural  rights  and  easements  therein,  53. 
INTERRUPTIONS. 

Interruptions  in  user  evidence  of  enjoyment  not  being  as  of 

right,  173. 
Prescriptive  user  must  be  uninterrupted,  174. 
Interruption  in  enjoyment  as  of  right,  175. 
Interruption  in  enjoyment  as  an  easement,  176. 
Interruption  in  enjoyment  in  fact,  177. 
Interruption  in  fact  as  at  common  law,  177. 
Non-user,  177. 

Partial  interruption  of  user,  177. 
Trifling  and  accidental  interruptions,  178. 
Suspension  of  user  by  agreement  or  for  convenience, 
178. 
Interruption  in  fact  under  the  Prescription  Act,  178. 

Obstruction  must  be  submitted  to  or  acquiesced  in  for 

one  year  after  notice,  178. 
Actual  and  involuntary  discontinuance  of  enjoyment 

required,  179. 
Obstruction  by  a  stranger,  179. 
Submission  and  acquiescence,  180. 
Interruption  by  tenant  for  life,  180. 
IRRIGATION  OF   LAND. 

Riparian  right  to  use  water  of  streams  for  irrigating  riparian 
land,  300. 
IRRIGATION  in  America,  301. 
Must  be  reasonable,  301. 

LAND. 

Right  to  send  water  over,  61. 
LANDLORD  AND  TENANT. 

Landlord  cannot  acquire  easement  against  while  estate  is  in 
possession  of  tenant,  114. 

User  of  easements  by  tenant  in  landlord's  ground,  12,  173. 

Prescriptive  rights  between  tenants,  13. 

Grant  by  landlord  to  tenant,  14. 

Prescription  against  a  landlord  out  of  possession,  160,  161. 
LANDS   CLAUSES   ACT,  1845. 

See  Railway  Clauses  Act,  1845. 

33 


514  INDEX. 

LICENSES. 

Distinguished  from  easements,  3,  4. 
Effect  of  a  license,  4. 
How  conferred,  90. 

By  word  of  mouth,  90. 
By  writing,  90. 
By  deed,  90. 

Implied  from  acquiescence,  91. 
Implied  from  circumstances,  92. 
Revocable  and  irrevocable,  469. 

Connected  with  a  grant  irrevocable,  469. 
Execution  of  a  work  of  a  permanent  and  expensive  char- 
acter, 471. 
The  American  law,  472. 
Revocation  by  adverse  act  of  the  grantor,  474. 
See,  also.  Permission. 
LIFE    ESTATES. 

Exclusion  of  periods  during  life  estates  when  computing  pre- 
scriptive periods,  152,  153. 
LIGHT. 

Compared  with  air  and  water,  31. 
Natural  right  to  use  of  light,  31. 
Right  to  light  is  an  easement,  33. 
Right  to  free  passage  of  light,  31-33. 

Subordinate  to  the  right  of  a  neighbor  to  build,  32,  189. 
Opening  new,  and  increasing  ancient  windows  to  admit  light, 
32,  190,  290. 

No  justification  for  obstructing  ancient  lights,  387. 
Right  to  obstruct  new  windows,  32,  290. 
Right  to  light  acquired  by  improving  the  condition  of  win- 
dows, 291. 
Prescription  Act  (section  3),  as  to  light,  138,  142. 
Light   not    claimable  by  prescription    at   common   law,   144, 

210. 
Acquisition  by  grant,  188. 

No  grant  implied  from  suffering  new  windows  to  be  made, 

190. 
Implied  grant  on  partition  of  land  and  houses,  191. 
Sale  of  house,  reserving  adjoining  land,  191,  384. 
Sale  of  land,  reserving  house,  191. 
Sale  of  house  and  land  simultaneously,  192. 


INDEX.  615 

LIGHT  —  continued. 

Effect  of  covenant  for  quiet  enjoyment,  202. 

Effect  of  this  covenant  on  a  grant  by  general  words, 
399. 
Acquisition  by  prescription,  190,  192. 
In  America  there  is  no  prescriptive  right  to  light  and  air,  202- 

210. 
Unless  Delaware  be  an  exception,  210. 

House  uninhabitable  ;  actual  enjoyment  required  by  stat- 
ute, 210. 
Customary  right  to  build  so  as  to  obstruct  abolished,  210. 
Prescriptive  right  depends  solely  on  the  statute,  211. 
No  grant  or  license  presumed,  212. 
Doubts  on  these  points,  212. 
Light  need  not  be  enjoyed  "  as  of  right,"  213. 
Capability  of  resisting  enjoyment,  215. 
Enjoyment  in  the  character  of  an  easement,  215. 
Open  ground;  no  prescriptive  right  to  light,  216. 
Shop  windows  ;  light  for  display  of  goods,  216. 
Extraordinary  light  for  special  purpose,  217,  289,  290. 
Increasing  and  altering  light  by  reflection,  219. 
Extent  of  the  right  to  light,  286. 

1.  When  acquired  by  prescription,  286. 

2.  When  acquired  by  grant,  289. 

The  purpose  for  which  light  is  used  not  to  be  regarded,  289. 
Free  passage  of  air  and  light  distinguished,  369. 

Injunctions,  when  granted  for  obstruction  of  air,  370. 
Obstruction  of  light,  382. 
Right  to  sue,  382. 
Restraint  by  injunction,  383. 

Acquiescence  in  building,  effect  of,  384. 
Right  by  implied  grant ;  obstruction,  384. 
That  sufficient  light  is  left,  no  justification  for  obstruction,. 

385,  386. 
Neither  that  a  new  stream  of  light  is  substituted,  386. 
Position  of  an  obstructing  building,  387. 
That  ancient  lights  have  been  enlarged  or  new  windows 

opened,  no  justification  for  obstruction,  387. 
Right  of  action  by  reversioner,  394. 

Injunction  at  the  suit  of  a  person  with  limited  interest, 
396. 


516  IXDEX. 

LIGHT  —  continued. 

Right  to  sue  a  tenant  for  obstructing  light,  397. 

Cannot  be  sued  for  continuing  obstruction,  397. 
Substantial  injury  requisite  to  support  an  action,  397. 
Breach  of  covenant  for  quiet  enjoyment,  399. 
Light  prevented  falling  at  an  angle  of  forty-five  de- 
grees, 400. 
Possibility  of  future  injury,  401. 
Right  to  abate  an  obstruction  of  light,  406. 
Loss  of  right  by  abandonment,  477.     (See  Abaxdonment.) 
Presumption  of  release  of  servient  owner's  obligation,  478. 
Release  presumed  after  less  than  twenty  years'  non-user, 

478. 
Effect  of  altering  the  size  or  position  of  ancient  windows, 
480. 

Effect  on  rights  acquired  by  grant,  480. 
Effect  on  rights  acquired  by  prescription,  481. 
Non-user,  482. 
Restoration  of  ancient  lights  in  new  buildings,  483. 
LIMIT   OF   EASEMENTS,  274. 

See  Extent  of  Easements. 
LIMITED    SUPPORT  for  buildings,  294. 
LOCUS  AD   QUEM. 

User  of  way  to  a  place  beyond,  324. 
The  American  doctrine,  325,  326. 

IMANUFACTURES. 

Natural  right  to  use  water  of  streams  for  manufacturing  pur- 
poses, 302. 
MARRIAGE. 

See  Feme  Covert. 
MEASURE. 

Of  easements  granted  by  deed,  275. 

Of  easements  acquired  by  prescription,  279. 

Of  right  of  way  granted  by  deed,  314, 

The  law  in  America,  315,  316. 
MINE. 

Right  of  necessity  to  dig  through  surface  land,  26. 

Natural  right  to  support  afforded  by  minerals,  34. 

Right  to  excavate  minerals  and  substitute  props,  36,  416. 

Result  if  destruction  of  support  is_  inevitable   when  working 
mines,  37,  294. 


INDEX.  517 

MINE  —  continued. 

Support  afforded  by  water  in  a  mine ;  right  to  drain,  39. 
Right  to  let  down  surface  land  when  excavating  minerals,  44. 
Mining  leases ;  right  of  lessee  to  destroy  all  support,  223. 
Reservation  of  mines  with  power  to  excavate  the  minerals,  294. 
Right  to  excavate  under  railways  when  land  is  purchased  cora- 

pulsorily,  38,  225,  421. 
See  Support. 
MISCELLANEOUS   RIGHTS. 
Public  highway,  8. 
Pews,  8  (s). 
Common,  8  (s). 

Fastening  clothes  lines  and  drying  linen,  78  (u). 
Nailing  trees  to  a  wall,  78  {u). 
Use  of  a  chimney  for  smoke,  78  (ii). 
Dripping  of  eaves,  78  (ii). 
Public-house  sign -post,  78  (m). 
Tethering  horses,  78  (?<). 
Maintaining  a  sign-board,  78  {u). 
Uninterrupted  prospect,  77. 
Uninterrupted  view  of  shop  windows,  82. 
Undisturbed  privacy,  84,  85. 
MODE   OF   USER. 

How  ascertained,  275. 

If  an  easement  is  granted  by  deed,  275,  314. 
If  acquired  by  prescription,  279,  316. 
Increase  of  user  by  alteration  of  the  dominant  tenement,  280. 
Excessive  user,  281,  309. 

Right  to  obstruct  excess,  281,  309. 

Enlarging  and  increasing  the  number  of  ancient  windows, 

290,  387. 
Improving  the  condition  of  ancient  windows,  291. 
Use  of  water  of  natural  streams,  296. 

Limited  by  right  to  uninterrupted  flow,  296. 
Right  to  use  to  be  exercised  reasonably,  296. 
Supplying  a  gaol  or  lunatic  asylum,  296. 
Ordinary  and  extraordinary  use,  297. 
Use  for  purposes  of  utility  only,  300. 
Irrigation  of  riparian  land,  300. 
Use  for  manufacturing  purposes,  302. 
Pollution  of  water  by  particular  means  only,  309. 


618  INDEX. 

MODE   OF   JJ S'EU  — continued. 

Pouring  dirty  water  in  excess  of  right,  309. 

Easements  only  to  be  used  in  connection  with  their  dominant 

tenements,  321,  324. 
Not  universally  true  in  America,  10,  321. 

Use  of  way  to  locus  ad  quern  and  thence  beyond,  unlawful, 
324. 
Mere  colorable  use  of  dominant  tenement,  325. 

"Way  leading  to  a  highway,  328. 
Decreasing  the  width  of  ways,  332. 
Way  impassable ;  right  to  walk  on  adjoining  land,  340. 
Way  periodically  interrupted  ;  right  to  deviate,  340. 
Interruptions    from    extraordinary   causes ;   right   to    deviate, 

341. 
Destruction  of  road  ;  right  to  deviate,  341. 
Want  of  repair';  right  to  deviate,  342. 
The  American  law,  343. 

Way  impassable  by  act  of  grantor  ;  right  to  deviate,  345. 
Repair  of  ways,  346. 
Direction  of  ways,  346. 
Direction  of  ways  of  necessity,  348. 

Variation  of  direction  of  such  ways,  350. 
The  law  in  America,  350, 
Variation  of  mode  of  using  ways,  350,  351. 

Right  to  apply  modern  inventions,  351. 
Power  to  make  ways  to  be  exercised  reasonably,  352. 
See,  also.  Extent  of  Easements. 

NAILING  TREES. 

Right  to  nail  trees  to  a  wall,  78  (u). 
NATURAL  RIGHTS. 
What  are,  2. 

Easements  distinguished  from,  2,  3. 
Given  by  law  and  inherent  in  land,  2. 
How  affected  by  easements,  23,  157,  275. 
Natural  rights  apparently  inconsistent,  24,  274. 
Natural  rights  in  streams,  called  "  Riparian  Rights,"  52.     (See 

Riparian  Rights.) 
No  natural  rights  of  way,  72. 
Cannot  be  extinguished,  448. 
May  be  suspended,  448. 


INDEX.  519 

NATURAL  -RIGHTS  — continued. 
After  suspension  will  revive,  448. 

See,  also.  Air  ;  Light  ;  Support  ;  Streams  ;  Water. 
NATURAL  STREAMS. 

Defined  and  distinguished  from  artificial  streams,  48. 
See,  also,  Streams. 
NECESSITY,  EASEMENTS  OF. 
Their  nature,  25. 

The  American  law  is  in  harmony  with  the  MigUsh,  269,  270,  271. 
Whether  there  must  be  an  absolute  necessity,  26,  268. 
When  such  easements  are  permitted,  26. 

Pass  to  a  purchaser  of  land  under  general  words  of  convey- 
•        ance,  98. 

Acquisition  of  ways  of  necessity,  266. 
No  other  way  must  exist,  268. 
Grant  must  be  capable  of  being  presumed,  268. 
Coextensive  with  the  necessity,  319. 
Direction  of  ways  of  necessity,  348. 

Variation  of  direction  of  ways  of  necessity,  350. 
The  law  in  America,  350,  351. 
Extinguished  when  the  necessity  ceases,  452,  486. 
Extinction  on  union  of  seisin,  488. 

The  American  law,  487,  488,  489. 
Revival  on  severance,  488. 
In  many  American  States  there  are  statutes,  272,  273. 
NEGLECT  to  repair  a  way,  no  action  for,  443. 
NEGLIGENCE, 

Removal  of  one  of  two  adjoining  buildings,  44. 
Obligation  to  use  care,  44. 

No  obligation  to  shore  or  give  notice  of  removal,  44. 
NEW  SPECIES  OF  EASEMENT. 
Not  recognized  by  law,  21,  77. 

Covenant  for  such  rights  binding  on  covenantor,  22,  78. 
«  NEXT  BEFORE  "  SUIT  OR  ACTION. 

Prescription  Act ;  prescriptive  periods  required  to  be  next  be- 
fore some  suit  or  action,  146. 

Not  from  the  commission  of  an  adverse  act,  147. 
Meaning  of  some  suit  or  action,  147. 
User  must  be  next  before  suit  or  action,  148. 
No  such  rule  at  common  law,  149. 

Intervening  periods  of  disability  to  be  excluded  when  comput- 
ing prescriptive  periods,  152. 


520  INDEX. 

NOISE. 

Acquisition  of  prescriptive  right,  141  (d). 
NON  COMPOS  MENTIS. 

Exclusion  of  periods  of  lunacy  when  computing  prescriptive 
periods,  152. 
NON-USER. 

Acquisition  of  easements  prevented  by  non-user,  177. 

Suspension  of  user  by  agreement,  or  for  the  sake  of  con- 
venience, 178. 
Non-user  alone  not  conclusive  evidence  of  abandonment,  461. 
When  non-user  raises  a  presumption  of  abandonment,  462. 
Cases  in  which  non-user  is  the  only  evidence  of  abandonment, 

464. 
Abandonment  presumed   after  non-user  for  less  than   twenty 

years,  465. 
Non-user  in  consequence  of  a  temporary  agreement,  467. 
Non-user  on  substitution  of  new  method  of  enjoyment  for  con- 
venience, 467. 
NUISANCES,  public,  381. 

OBLIGATION. 

Nature  of  on  servient  owner,  17. 

And  right  to  repair  a  supporting  building,  294,  295. 

To  keejj  a  stream  free  from  obstruction,  427. 
The  American  law,  428. 
OBSTRUCTION. 

See  Air  ;  Light  ;  Prospect  ;  Streams  ;  "Window. 

By  grantor,  right  to  deviate,  345. 
OWNERSHIP,  UNITY  OF. 

See  Unity  of  Ownership. 

PAROL. 

Licenses  granted  by  parol,  3,  90. 

Easements  can  only  be  granted  or  transferred  by  deed,  3,  88, 
283. 

Contract  for  an  easement  not  under  seal,  valid,  90. 
PARTIAL  INTERRUPTION  of  user,  177. 
PARTITION  OF  LAND. 

Partition  of  riparian  estate  ;  effect  on  riparian  rights,  53,  437. 
No  implied  grant  of  quasi-easements  used  during  unity  of  seisin 
under  the  word  "  appurtenances,"  100. 
Exceptional  cases,  102. 


INDEX.  521 

PARTITION  OF  LAND  —  continued. 

Grant  of  easements  "used  and  enjoyed"  during  unity  of  seisin, 

103. 
Implied  grant  of  apparent  and  continuous  easements,  105. 
Distribution  of  easements  on  partition  of  dominant  tenements, 
337. 
PARTY  WALLS,  228,  229. 
PASTURAGE. 

Right  of  pasturage,  a  profit  a  prendre,  7. 
PEACEABLE  ENJOYMENT. 

Prescriptive  user  must  be  peaceable,  172. 

Interruptions,  however  slight,  are  evidence  that  enjoyment  is 
not  peaceable,  173. 
PENNING  BACK  WATER. 

Right  to  pen  back  the  water  of  streams  an  easement,  58,  249. 
Acquisition  of  such  right  by  prescription,  249. 
See  also  Streams. 
PERMANENCE. 

Tenements  and  the  subjects  of  easements  must  be  permanent 
for  prescription,  166. 
PERMISSION. 

Permission  for  user  prevents  prescription,  172. 
Cessation  of  user  by  permission,  179. 
Exception,  173. 
PEW. 

Right  to  a,  in  a  church,  is  designated  an  easement,  8,  79. 
PLANS. 

Ways  shown  in  plans  of  property  conveyed  ;  grant,  264. 
The  American  doctrine,  265. 
POLLUTION  OF  AIR. 

Natural  right  to  purity  of  air,  29. 
Limit  of  that  right,  29,  286. 
Right  to  pollute  air  an  easement,  29,  188. 
Pollution  in  the  absence  of  an  easement,  when  justifiable,  30. 
By  reasonable  use,  30. 
By  carrying  on  trade,  30. 
Implied  grant  of  right  to  pollute  on  sale  of  a  factory,  188. 
Acquisition  of  right  by  prescription,  188. 

Qucere  :  whether  the  right  can  be  acquired  under  the  Pre- 
scription Act,  141. 
Right  of  action  for  pollution,  370. 


522  INDEX. 

POLLUTION  OF  AIR— co7iti7iued. 
Pollution  must  be  unjustifiable,  371 

Air  previously  polluted  by  other  means,  372. 
Coming  to  a  place  where  the  air  is  polluted,  372. 
Unavoidable  pollution  by  trade,  373. 
Result  of  authorities,  379. 
Public  nuisance,  381. 
Right  of  action  by  a  reversioner,  381. 
Acquiescence  in  pollution  prevents  an  injunction,  382. 
POLLUTION  OF  WATER. 

Natural  right  to  purity  of  water,  67,  253. 

No  distinction  between  surface  and  underground  water,  or 
defined  and  undefined  streams,  66,  253. 
Right  to  pollute  water  an  easement,  68. 

An  easement  within  the  meaning  of  the  Prescription  Act, 
142. 
Right  by  appropriation  to  purity  of  artificial  streams,  254. 
Acquisition  of  right  to  pollute  streams,  258. 

Pollution  imperceptible  and  gradually  increasing,  258. 
Measure  of  prescriptive  right  to  pollute  streams,  307. 

Measure  if  pollution  has  gradually  increased,  307. 
Pollution  by  a  particular  means,  309. 
Right  to  sue  for  pollution,  434. 

Pollution  by  others  no  justification  for  fouling  water,  435. 
Pollution  of  water  by  carrying  on  trade  not  justifiable,  436. 
When  the  court  will  restrain  pollution,  436. 
Acquiescence  prevents  such  remedy,  364, 
Drainage  of  towns  restrained  if  streams  are  polluted, 

437. 
The  American  law,  438. 
Riparian  owners  must  prove  injury  in  that  character,  438. 
Right  to  sue  for  pollution  of  underground  water,  439. 
Right  to  sue  for  pollution  in  the  absence  of  right  to  use 
water,  439. 
POSSIBILITY. 

Of  future  injury  to  light,  401. 
The  American  law  considered,  407,  408. 
POURING  WATER  OVER  LAND. 

Right  to  send  water  over  land  may  be  acquired  as  an  easement, 
61,  250. 

No  obligation  to  continue  sending  such  water,  61,  251. 


INDEX.  523 

POURING  WATER  OVER  LAl^J)  —  continned. 

A  right  to  a  watercourse  within  the  Prescription  Act,  142. 

Right  to  send  clear  water  ;  sending  dirty  water  in  excess  of 
right,  309. 
PRECARIOUS  ENJOYMENT. 

Insufficient  for  prescription,  172. 
PRESCRIPTION. 

Acquisition  of  easements,  by  prescription,  87,  131. 

Prescription  in  America  depends   mostly  upon   common   law 
principles  and  not  upon  special  statutes  as  in  England,  133. 

Must  be  adverse,  134. 

In  America  there  is  no  prescriptive  right  to  light  and  air,  202- 
210. 

Mahan  v.  Brown  the  great  leading  case,  203. 
Unless  Delaware  be  an  exception,  210. 
In  some  States  there  are  short  Prescription  Acts,  220. 

Cannot  be  so  acquired  for  a  limited  period,  96,  146. 
Nature  of  prescription  at  common  law,  132. 

Meaning  of  "  immemorial  usage,"  or  "  time  whereof  the 

memory  of  man  runneth  not  to  the  contrary,"  132. 
Presumption  of  immemorial  usage  after  twenty  years'  user 

132. 
Presumption  of  grant,  133. 
Prescription  under  the  Prescription  Act.     (See  Prescription 

Act.) 
Common  law  not  affected  by  the  act,  144. 

Except  in  cases  of  right  to  light,  144,  211. 
And  (qu(Bre)  in  cases  of  claims  to  other  absolute  and  inde- 
feasible rights,  144. 
Owners  in  fee  can  alone  prescribe  at  common  law,  145. 
Claims  in  right  of  occupiers  under  the  act,  145. 
All  prescriptive  rights  acquired  for  the  owner  in  fee,  146. 
Prescriptive  user  the  same  in  character  at  common    law  and 

under  the  act,  154. 
No  prescription  at  variance  with  a  grant,  155. 
No  prescription  at  variance  with  a  prescriptive  right,  156. 
An  easement  may  be  acquired  subordinate  to  an  adverse  right 

25,  157. 
Prescription  may  be  at  variance  with  natural  rights,  157. 
No  prescription  unless  a  grant  can  be  presumed,  133,  157. 
Except  in  cases  of  right  to  light,  158,  211. 


524  INDEX. 

TRESCRITTIO^  —  continued. 

Easements  must  have  been  capable  of  being  granted,  158. 
Owner  being  totally  deprived  of  the  use  of  his  land,  imma- 
terial, 158. 
No  prescription  adversely  to  a  statute,  159,  279. 

Prescription  subsequent  to  an  adverse  statute,  160. 
Servient  owner  must  have  been  capable  of  resisting  the 
user,  160. 

Qucere  :  In  cases  of  right  to  light,  215.      ^ 

User  in  land  occupied  by  a  tenant,  160,  161. 

User  in  land  not  the  property  of  the  servient  owner, 

161. 
The   power   to   resist  must  be  by  some  reasonable 
means,  161. 
Servient  owner  must  have  been  capable  of  granting  the 

right  claimed,  162. 
Dominant  owner  must  have  been  capable  of  taking  the 

right  claimed  by  grant,  163. 
Time  when  incapacity  must  exist  to  defeat  prescription, 

164. 
No  prescription  if  servient  owner  is  ignorant  of  the  user, 
165. 

Knowledge  may  be  presumed  in  some  cases,  166. 
Dominant  and  servient  tenements,  and  the  subject  of  an 
easement,  must  be  permanent,  1 66. 
No  prescription  unless  title  is  acquired  against  all  persons,  167. 
User  must  have  been  "as  of  right,"  113. 
Except  in  the  case  of  light,  213. 
User  by  permission,  or  by  stealth,  or  precarious,  not  "  as 

of  right,"  172. 
Nor  unless  peaceably  enjoyed,  172. 

All  interruptions  are  evidence  that  enjoyment  is  not 
peaceable,  173. 
Privilege  must  have  been  enjoyed  in  the  character  of  an  ease- 
ment, 173,  215. 
User  must  be  uninterrupted  and  continuous,  174. 
Interruptions  are  of  three  kinds,  175. 

Interruptions  in  enjoyment  as  of  right,  175. 
Interruptions  in  enjoyment  as  an  easement,  176. 
Interruptions  in  enjoyment  in  fact,  177. 

Interruptions  in  fact  at  common  law,  177.     (See  In- 
terruptions.) 


INDEX.  525 

PRESCRIPTION  —  continued. 

Interruptions  in  fact  under  the  Prescription  Act,  178. 
(See  Interruptions.) 
Easements  not  claimable  both  by  prescription   and  under  a 

custom,  184. 
See,  also,  Prescription  Act. 

PRESCRIPTION   ACT.     (For  the  Act,  see  Appendix,  p.  493.) 
Acquisition  of  easements  by  custom  recognized,  18.     (See  Cus- 
tom.) 
Origin  of  the  Act,  111,  136. 
Preamble,  136. 

Section  1  relates  to  profits  a  prendre,  137. 
Section  2.  — Ways  or  other  easements,  watercourses,  or  the  use 

of  water,  137. 
Section  3.  — Light,  137,  142.     (See  Light.) 
To  what  easements  the  act  applies,  131. 
Easements  acquired  by  custom,  138. 
Private  (not  public)  ways,  138. 
"  Or  other  easement,"  138. 

Uninterrupted  flow  of  air,  138. 
Support,  140. 
Pollution  of  air,  140. 
Must  be  for  a  purpose  contemplated  by  the  act,  141,  142. 
Easement  claimed  to  obtain  a  profit  a  prendre,  142. 
"Watercourse:"  meaning  of  the  word,  142. 
Right  to  pour  water  over  land,  142. 
Right  to  pollute  a  stream,  142. 
"Use  of  water,"  142.     (See  Use  of  Water.) 
Light,  142.     (See  Light.) 
Actual  enjoyment  for  full  term  required,  143. 

Acquisition  after  user  for  less  than  the  full  term,  143. 
The  act  does  not  aifect  prescription  at  common  law,  144. 
Except  in  cases  of  right  to  light,  144,  211. 
And  {qucere)  in  cases  of  claims  to  other  absolute  and  inde- 
feasible rights,  144. 
Legalization  of  user  during  an  antecedent  period  of  prescription, 

145. 
Section  b.  —  Occupiers  of  land   may  prescribe   in   their   own 
names,  145. 

Easements  are  nevertheless  acquired  for  the  owner  in  fee, 
145. 


526  INDEX. 

PRESCRIPTION  ACT  — continued. 

Rules  for  computing  prescriptive  periods,  146. 
Section  4.  —  Prescriptive  periods  to  be  next  before  some  suit 
or  action,  146. 

Not  before  an  act  in  opposition  to  the  easement,  147. 

Meaning  of  some  suit  or  action,  147. 

User  must  be  next  before  some  suit  or  action,  148. 

Intervening  life  estates  to  be  excluded,  153. 
No  such  rules  for  prescription  at  common  law,  149. 
No  presumption  to  be  made  in  the  absence  of  proof  of  user,  149. 
User  presumed  on  proof  of  enjoyment  before  and  after  a 

period  of  intermission,  150. 
Presumption  of  grant  not  prohibited  when  evidence  of  an 
actual  grant  exists,  151. 
Section  7.  —  Exclusion  from  computation  of  periods  of  disabil- 
ity of  persons  interested  in  resisting,  152. 
Section  8.  —  Exclusion  from  computation  of  tenancies  for  life 
and  years  in  the  servient  tenement,  152. 

"  Other  convenient  watercourse,"  in  section  8,  a  mistake, 

152. 
Intervention  of  life  estate:  effect  o^ sections  4  and  7,  153. 
User  to  be  continuous  :  effect  o^  sections  7  and  8,  153. 
When  tenancies  for  life  and  years  are  not  to  be  excluded 
under  section  8,  154. 
Prescriptive  user  the  same  in  character  at  common  law  and 

under  the  act,  154. 
See,  also,  Prescription  ;  Interruptions  ;  "  As  of  Right." 
PRESUMPTION. 

Of  lost  grant  after  long  user,  111,  132. 

User  must  have  been  as  of  right,  113.  (See  "As  op  Right.") 
Prevented  by  ignorance  of  and  incapacity  to  resist  user, 

113. 
Grant  not  presumed  solely  from  lapse  of  time,  114. 
Surrounding  circumstances  to  be  considered,  114. 
Prevented  if  user  is  by  leave,  or  if  the  right  is  contested, 
115. 
Prescription  depends  upon  possibility  of  presuming  a  grant,  1 32. 
No  presumption  of  user  allowed  by  the  Prescription  Act,  149. 
User  presumed  on  proof  of  enjoyment  before  and  after  a 

period  of  intermission,  150. 
Presumption  of  grant  not  prohibited   when  proof  of  an 
actual  grant  exists,  150,  151. 


INDEX.  527 

PRIVACY. 

Rights  to  undisturbed  privacy  not  recognized  by  law,  84. 
Disturbance  by  opening  windov/s,  32. 
PRIVILEGE. 

An  easement  is  a  privilege,  4. 

Confers  no  interest  in  the  soil,  5. 
Same  is  true  of  public  ways,  56. 
Easement  is  a  privilege  without  profit,  6,  7. 

Right  to  take  coal,  and  right  to  take  all  coal  distin- 
guished, 5. 
Grant  of  exclusive  use  of  land,  5. 
PROFITS   A   PRENDRE. 
Not  easements,  7. 

Rights  to  take  fish,  stone,  and  trees,  7. 

Right  to  take  water  an  easement  and  not  a  profit  a  prendre,  7. 
Unless  confined  in  a  tank  or  vessel,  7. 

Easement  claimed  under  the  Prescription  Act  to  obtain  a  profit 
a  prendre,  142. 
PROSPECT. 

Right  to  uninterrupted  prospect  not  recognized  by  law,  79. 
Covenant  not  to  obstruct  prospect  binding  on  covenantor,  80. 

Such  covenants  frequently  run  with  the  land,  81. 
View  of  a  shop  window,  82. 
PUBLIC  NUISANCES,  381. 
PUBLIC   WAYS. 

Mere  privileges  to  pass  over  land,  6. 

Right  of  landowner  to  use  the  soil,  6. 

Not  easements,  9,  72. 

Generally  called  easements  in  America,  10,  130. 

Effect  as  regards  the  owner  of  the  soil,  72. 

Ways  common  to  many  persons  not  public,  75. 

Public  and  private  ways  may  coexist,  75,  485. 

Repairs,  if  public  and  private  ways  coexist,  76  (o). 
Obstruction  of  private  way  over  a  public  road,  445. 
Not  affected  by  the  Prescription  Act,  138. 
Right  to  alter  place  of  access  to  a  public  way,  320. 
Way  impassable:    right  to  walk  on    the   adjoining   soil,  340 

345. 
Obstruction  of  a  public  way ;  remedy,  445. 
Obstruction  of  a  private  way  by  an  obstacle  in  a  public  road, 
445. 


528  INDEX. 

PUBLIC-HOUSE  SIGN. 

Right  to  place  sign  opposite  a  house,  78  (u) . 

Right  to  maintain  sign-board,  78  (u). 
PURITY   OF   AIR,  29. 

See  Air  ;  Pollution  of  Air. 
PURITY  OF   WATER,  67. 

See  Pollution  of  Water;  Streams. 

QUIET  ENJOYMENT. 

Covenant  for  quiet  enjoyment,  202. 

No  grant  of  right  to  light  and  air  implied  from  covenant,  202. 

Effect  of  this  covenant  on  a  grant  by  general  words,  399. 

RAILROADS. 

Interests  acquired  by,  generally  easements  in  America,  130. 
So  of  turnpike,  waterworks,  and  gas  companies,  131. 
RAILWAYS   CLAUSES  CONSOLIDATION  ACT,  1845. 

Effect  of  compulsory  purchase  of  land  on  the  natural  right  to 
support  from  minerals,  225,  421. 
RELEASE. 

Extinction  of  easements  by  release,  460,  478. 
Release  may  be  actual  or  presumed,  460. 

Not  presumed  from  non-user  alone,  461. 

When  presumed  on  cessation  of  user,  462. 

Cases  in  which  non-user  is  the  only  evidence  of  release, 

464. 
When  presumed  after  non-user  for  less  than  twenty  years, 
465,  478. 
Release  can  only  take  place  after  an  easement  has  been  actu- 
ally acquired,  466. 
Temporary  agreement  to  suspend  user  negatives  presumption 

of  release,  467. 
So,  also,  substitution  of  new  method  of  enjoyment  for  conven- 
ience, 467. 
Right  of  dominant  owners  to  release  or  abandon  easements, 
468. 
REPAIR. 

Right  to  repair  a  servient  tenement,  or  the  subject  of  an  ease- 
ment, 285,  346. 
No  obligation  on  the  servient  owner,  18,  285. 
No  right  of  action  for  neglect  to  repair  a  way,  443. 


INDEX.  529 

RESERVATION  OF   EASEMENTS. 

Operation  of  a  reservation  of  an  easement  on  a  sale  of  land, 

108. 
Implied  grant  of  support  on  sale  of  land  reserving  the  subsoil, 

221. 
Implied  reservation  on  grant  of  subsoil  i-eserving  the  surface 
land,  222. 
RESISTANCE. 

Incapacity  of  a  servient  owner  to  resist  user  prevents  presump- 
tion of  lost  grant,  113. 
Prescription  Act :  exclusion  of  periods  of  incapacity  from  pre- 
scriptive periods,  152. 
Incapacity  to  resist  user  prevents  prescription,  160. 

The  power  to  resist  must  be  by  reasonable  means,  161. 
Incapacity  from  ignorance  of  user,  165. 

Qucere  :  In  cases  of  right  to  light,  215. 
The  law  in  America  is  the  same,  165. 
RESTORATION. 

Of  ancient  lights  in  new  buildings,  483. 
REVERSIONER. 

When  the  occupier  of  a  dominant  tenement  can  alone  sue  for 

disturbance,  358. 
Cases  in  which  a  reversioner  can  sue,  359,  394,  444. 
REVIVAL. 

Easements   and   natural  rights   revive  after  suspension,   448, 

475. 
Easements  extinguished  cannot  be  revived,  475,  476. 
Revival  of  easements  extinguished  by  unity  of  seisin  on  re-par- 
tition of  tenements,  476. 

Proper  words  must  be  used  in  deed  of  partition,  476. 
Revival  of  ways  of  necessity,  488. 
RIGHTS. 

Right  to  free  passage  of  air,  28. 
Right  to  purity  of  air,  29. 
Right  to  pollute  air  an  easement,  29. 
Rights  in  connection  with  air,  28. 
Right  to  support  by  implied  grant,  227. 
Right  to  support  by  prescription,  229. 
Right  to  divert  a  stream,  249. 
Right  to  pen  back  the  water  of  streams,  249. 
34 


530  INDEX. 

RIGHTS  —  continued. 

Right  by  appropriation  to  purity  of  artificial  streams,  254. 

Whaley  v.  Laing,  254. 
Right  to  take  water  for  use,  261. 
Right  to  obstruct  excessive  user  of  easements,  281. 
Right  of  freedom  from  disturbance,  354.    - 
Right  to  sue  in  absence  of  actual  damage,  357. 
RIPARIAN. 

"  Riparian  "  land,  owners,  proprietors,  and  rights,  52. 
Riparian  rights  incident  to  the  whole  of  a  riparian  estate,  52. 
Assignment  of  riparian  rights  by  a  riparian   proprietor,  58, 

310. 
Riparian  rights  incident  to  an  estate  in  its  riparian  character, 

50,  438. 
Partition  of  a  riparian  estate,  53,  310. 
Rights  and  obligations  of  riparian  owners  at  the  source  of  a 

stream,  54. 
No  riparian  rights  unless  the  course  of  a  stream  is  defined  and 
known,  54. 

Underground  streams,  55. 
Riparian  rights  suspended  on  creation  of  easements,  53. 
Grant  of  privilege  of  disturbing  riparian  rights,  56, 
Riparian  owners  to  sue  for  disturbance  must  prove  injury  in 
that  character,  438. 
RIVERS. 

Right  to  defend  land  from  floods,  59. 

Injury  to  neighbors  therefrom,  59  (s). 
Tidal  rivers  different  from  the  sea,  60. 
See,  also,  Streams. 

SALE. 

Of  house  and  land  simultaneously,  192. 
The  American  doctrine,  192-199. 
Four  different  views,  192. 

Story  V.  Odin,  192. 

Robeson  v.  Pittenger,  193. 
The  New  York  doctrine,  197. 

Mullen  V.  Strieker,  200. 
SEA. 

Flooding  by  the  sea,  59. 

Right  to  defend  lands  regardless  of  neighbors,  59. 

Obligation  to  maintain  sea-walls,  59,  60. 


INDEX.  531 

SEISIN,  UNITY  OF. 

See  Unity  of  Ownership. 
SERVIENT  OWNER. 

Who  is,  10. 

Nature  of  the  obligation  on  a  servient  owner,  17. 

Being  incapable  of  resisting  user,  there  is  no  prescription,  160. 

Incapacity  of,  to  make  a  grant  rebuts  prescription,  162. 
SERVIENT  TENEMENT. 

What  is,  11. 

Must  be  distinct  property  from  the  dominant  tenement,  11. 

No  easement  can  be  acquired  for  benefit  of  the  servient  tene- 
ment, 16. 
SEVERANCE  OF  LAND. 

See  Partition  of  Land. 
SHOP  WINDOWS. 

Uninterrupted  view  of  shop  windows,  78. 
Implied  covenant  not  to  obstruct,  79. 

Right  to  unobstructed  light  for  display  of  goods  in  a  window, 
216. 
SHORING  UP  BUILDINGS. 

Obligation  to  shore  when  removing  adjoining  buildings,  43,  44. 
SMOKE. 

Right  to  convey  smoke  up  another  person's  chimney,  78  (u). 
SPRINGS. 

Rights  and  obligations  as  to  the  water  of  springs,  52. 
STATUTE. 

Grant  under,  an  immediate  or  conditional,  129. 
STONE. 

Right  to  take  stones  a  profit  a  prendre,  7. 
STREAMS. 

Natural  and  artificial  streams  defined  and  distinguished,  48. 
Water  from  a  natural  source  in  a  natural  course,  48. 
Water  from  a  natural  source  in  an  artificial  course,  48. 
Water  flowing  by  artificial  means  into  a  natural  stream, 
51. 

Natural  rights  in  natural  streams,  51. 

Easements  in  streams,  51. 

No  natural  rights  in  artificial  streams,  52. 

Easements  in  both  natural  and  artificial  streams,  52. 

Riparian  rights  incident  to  the  whole  of  a  riparian  estate,  52. 

Partition  of  a  riparian  estate,  53. 


532  INDEX. 

STREAMS  —  continued. 

Assignment  of  riparian  rights  by   a  riparian   proprietor,  53, 

310. 
Intermittent  streams,  53. 
Rights  and  obligations  of  a  riparian  owner  at  the  source  of  a 

natural  stream,  54. 
No  riparian  rights  or  easements  unless  the  course  of  a  stream 
is  defined  and  known,  54,  58,  240,  247. 
Rights  in  underground  streams,  54,  247. 

1.  Rights  which  have  relation  to  the  flow  of  streams,  55. 

Natural  rights  to  uninterrupted  flow,  56. 

Rights  to  divert,  consume,  or  obstruct  the  flow,  or  to  pen 

back  the  water,  easements,  56,  57. 
Natural  right  altered  by  easements,  56. 
Right  to  have  water  diverted  by  another  person,  58. 
Right  to  divert  flood  water,  59. 
Protection  of  land  from  the  flow  of  the  sea,  59. 

Obligation  to  maintain  sea-walls,  59. 
Tidal  rivers,  60. 
Right  to  send  water  over  land,  61. 

Obligation  to  continue  sending  such  water,  61. 
Limit  of  natural  rights  to  the  u^e  and  to  the  flow  of  water, 

296. 
Underground  streams,  61. 

Difference   between  water   percolating   and   defined 

streams,  247. 
No  right  to  water  in  undefined  streams,  58,  247. 
Except  by  grant,  247. 
Surface  streams  supported  by  underground  .water,  40,  QQ, 

67. 
The  law  as  to  surface  water  in  America,  241,  242. 
Diminution  of  stream  by  drainage,  40,  66,  67. 

2.  Rights  which    have  relation  to  purity  of  streams,  67,  253. 
(See  Pollution  of  Water.) 

3.  Right  to  take  water  for  use,  69.     (See  Use  of  Water.) 
Acquisition  of  water  rights,  240. 

By  grant,  240. 
By  prescription,  240. 
Artificial  streams  ;   when  prescriptive  rights  to  uninterrupted 
flow  can  be  acquired,  242. 

Temporary  and  permanent  streams,  243. 


INDEX.  633 

STREAMS  —  continued. 

No  prescriptive  right  against  originator  of  a  temporary  ar- 
tificial stream,  244. 

May  be  acquired  against  other  persons,  244. 
Prescriptive  right  in  permanent  artificial  streams,  247. 
Acquisition  of  right  to  divert  streams,  249. 
Acquisition  of  right   to   obstruct   and  pen  back  the  water  of 

streanis,  249. 
Appropriation  of  water  of  streams  ;  effect  as  to  acquisition  of 

easements.     (See  Appropriation  of  Water,  251.) 
Prescriptive  right  to  divert  part  of  the  water  of  a  stream,  302. 
Extent  of  prescription  to  flow,  302. 
The  law  in  America,  303. 

Cowell  V.  Thayer,  303,  304,  305. 
Partition  of  riparian  land  ;  effect  on  riparian  rights,  53,310. 
Disturbance  of  water  rights,  422. 

Damage  essential  for  right  to  sue  for  diversion  or  obstruction, 
423. 

Injury  to  the  right  to  the  flow  sufficient  damage  to  support 
an  action,  424. 
The  American  law,  425. 

"Water  diverted  from  a  stream  but  returned  thereto,  426. 
Obligation  to  keep  a  stream  free  from  obstruction,  427. 
Obstruction  before  the  possession  of  a  person  who  sues,  427. 
Right  to  sue  for  continuing  an  obstruction,  427. 
The  law  in  America,  428. 
Right  to  abate  an  obstruction,  429. 
Disturbance  of  the  steady  flow  of  a  stream,  429. 
See,  also,  Pollution  of  Water  ;  Use  of  Water. 
SUBJACENT  SUPPORT. 

Natural  right  to  subjacent  support  for  land,  34. 
See,  also.  Support. 
SUBORDINATE  EASEMENTS,  25. 

See  Easement. 
SUBSTITUTION  of  new  stream  of  light  in  a  different  direction, 

386. 
SUBTERRANEAN  STREAMS,  41,  61,  63,  226,  247. 
SUIT. 

See  Action.  . 

SUPPORT. 

Natural  right  to  adjacent  and  subjacent  support,  34,  220. 


534  INDEX. 

SUPPORT  —  continued. 

Not  in  respect  to  buildings  on  the  land,  34. 
Nature  of  the  natural  right  to  support,  34. 

Does  not  depend  upon  the  quality  of  the  soil,  35. 

What  is  adjacent  land,  36. 

Result  if  destruction  of  support  is  inevitable  when  working 

mines,  36,  293. 
Deprivation  of  the  right  by  statute,  37. 
Burden  cannot  be  suddenly  increased,  38. 
Easements  of  support,  220. 

Effect  of  compulsory  purchase  of  land  under   the   Railways 
■  Clauses  Act,  1845,  225,  421. 

Effect  on  natural  right  of  building  houses,  38,  409. 
Effect  of  excavating  subsoil,  38,  43. 

Support  for  land  from  underground  water  not  a  natural  right, 
39. 

Such  right  may  be  acquired  by  grant  though  not  by  pre- 
scription, 226. 
Support  for  surface  water  from  underground  water,  40. 
Support  for  buildings  not  a  natural  right,  41. 

Such  right  may  be  acquired,  41,  227. 
Right  to  deprive  land  of  support  an  easement,  43,  44. 
The  effect  of  contiguity  of  buildings,  43. 

Qucere :  Whether  right  to  support  is  an  easement  within 
the  meaning  of  the  Prescription  Act,  140. 
Acquisition  of  rights  to  support,  221. 

Implied  grant  on  severance  of  land  and  the   subsoil  by 

sale,  221. 
Implied  reservation  on  grant  of  subsoil  reserving  the  sur- 
face, 222. 

Mining  leases,  223. 
Right  to  deprive  land  of  support  not  acquired  by  custom 
or  prescription,  224. 

Grant  of  such  right  by  copyholder,  void,  224,  225. 
Right  to  support  for  buildings  acquired  by  implied  grant, 

227. 
Right  to  support  for  buildings  from  land  by  prescription, 
229. 
Effect  of  excavation  under  buildings,  229,  230. 
How  can  a  grant  be  presumed,  230. 
No  prescriptive  right  for  support  of  buildings  in  America, 
231,  232,  233. 


INDEX.  535 

SUPPORT  —  continued. 

No  right  to  support  for  buildings  from  buildings  by  pre- 
scription, 236, 
Natural  right  to  support  is  unlimited,  292. 
Modification  by  agreement,  294. 
Mining  leases,  223. 

Limited  right  to  support  for  buildings  if  support  for  land 
is  limited,  294. 
Obligation  to  repair  a  supporting  building,  294. 

Right  to  such  repair,  294,  295. 
Right  to  sue  for  disturbance  of  natural  right,  409. 

Effect  on  right  to  sue  of  the  erection  of  buildings,  409. 
The  American  law,  410. 

Thurston  v.  Hancock,  411,  412. 
Damage  to  newly-erected  buildings,  413. 
Right  to  sue  for  disturbance  of  support  to  buildings,  413. 

Effect  on  right  to  sue  of  increasing  the  weight  of  buildings, 
414. 
Right  to  sue  a  wrong-doer  for  removal  of  support,  415. 
No  right  of  action  for  destroying  support  till  damage  occurs, 
416. 

Time  to  sue  if  it  is  limited  from  the  commission  of  an  act, 
420,  421. 
Effect  on  rights  to  support  of  imposing  additional  weights,  484. 
SURFACE   WATER,  66,  243. 

Right  to  obstruct  or  detain,  39,  66. 
SUSPENSION. 

When  suspension  of  user  does  not  prevent  prescription,  178. 
Easements  and  natural  rights  temporarily  suspended,  447. 
Revival  after  suspension,  475,  476. 

TEMPORARY   ARTIFICIAL   STREAMS. 

Prescriptive  rights  in,  244. 

Arkwright  v.  Gell,  leading  case,  244,  245. 
TENANT. 

Grant  by  one  to  another,  93. 

Tenant  cannot  acquire  an  easement  against  landlord,  12. 

Tenants  may  acquire  easements  as  against  each  other,  13. 
TERMS   OF   YEARS. 

Easements  may  be  granted  for  a  term  of  years,  96. 

Cannot  be  so  acquired  by  prescription,  96. 


636  INDEX. 

TERMS  OF  YI^ARS  — continued. 

Exclusion  of  terms  of  years  in  computing  prescriptive  periods, 
152. 
TETHERING   HORSES. 

Right  to  tether  horses  for  pasturage,  78  (u). 
TIDAL   RIVERS. 

See  Rivers. 
TIME. 

Acquisition  of  easements  for  a  limited  time,  96. 
Twenty  years'  user  raises  presumption  of  grant,  111-115. 
"  Time  whereof  the  memory  of  man  runneth  not  to  the  con- 
trary," 132. 
Immemorial  usage,  132. 
Presumption  after  twenty  years'  user,  132. 
Prescription  Act,  136.     (See  Prescription  Act.) 
Mode  of  computing  prescriptive  periods,  146-154. 
TRANSFER. 

Transfer  of  easements  on  conveyance  of  dominant  tenement, 
96,  97. 

Express  grant  by  particular  description,  97. 
Express  grant  by  general  words,  97. 
"  Appurtenances,"  98,  283. 
Easements  "  used  and  enjoyed,"  103. 
Natural  rights  pass  without  mention,  283, 
Easements  only  assignable  by  deed,  283. 

Tenancies  created  without  deed ;  do  easements  pass  ?  283. 
Assignment  of  riparian  rights,  310. 
Easements  not  assignable  apart  from  their  dominant  tenements, 

321. 
Not  universally  true  in  America,  10. 
TREES. 

Right  to  cut  and  carry  away  a  profit  a  prendre,  7. 
TRESPASS. 

Trespass  by  user  during  prescriptive  period  legalized  when  an 
easement  is  acquired,  145. 
TRIFLING  and  accidental  interruptions,  I'IS. 

UNDERGROUND   WATER. 

No  right  to  support  for  land  from  upward  pressure,  41,  226. 

Destruction  of  support  by  drainage,  41,  227. 
Flow  of  underground  water,  61. 


INDEX.  537 

UNDERGROUND  W ATER  —  continued. 
Right  to  support  for  surface  water,  Go. 

In  America  no  action  lies  for  cutting  off  underground  water, 
65. 

Unless  running  in  known  and  defined  channels,  65. 
Diminution  of  stream  by  drainage,  41,  63. 
Laws  relating  to  surface  streams  do  not  apply  unless  under- 
ground streams  are  defined  and  known,  65,  247. 
Affecting  surface  streams,  66. 
Pollution  of  underground  water,  68. 
Right  to  sue  for  pollution,  439. 
See,  also,  Wells. 
UNDISTURBED    PRIVACY,  84. 
UNINTERRUPTED   ENJOYMENT. 

See  Interruptions  ;  Prescription  ;  Prescription  Act. 
UNINTERRUPTED   FLOW   OF   WATER. 

See  Streams. 
UNINTERRUPTED   PASSAGE   OF   AIR. 

See  Air. 
UNINTERRUPTED   PROSPECT. 

See  Prospect. 
UNITY   OF   OWNERSHIP. 

Dominant  and  servient  tenements  must  be  distinct  properties, 

10. 
Prevents  acquisition  of  easements  by  prescription,  177. 
Extinction  of  easements  by  unity  of  seisin,  457. 
Necessity  for  unity  of  seisin,  458. 
Unity  of  ownership  alone  causes  suspension,  459. 
Necessity  for  unity  of  seisin  for  estates  in  fee  simple,  459. 
Unity  of  possession  and  enjoyment  not  necessary,  460. 
UNOBSTRUCTED,  right  to  have  light  and  air,  33. 
"USED   AND   ENJOYED." 

Conveyance  ol  part  of  an  estate  with  easements  "  used  and 
enjoyed,"  103. 

Easements  which  existed  before  unity  of  ownership  pass, 

103. 
Quasi-easements   first   used   during    unity    of  ownership, 
qucere,  102. 
USE   OF    WATER. 

Right  to  take  water  for  use,  an  easement,  not  a  profit  a  prendre, 
7,  69. 


538  INDEX. 

USE   OF   WATER  —  co?z<m?ferf. 

Natural  right  of  riparian  proprietors,  56,  71. 

Limit  of  that  right,  70,  296. 
Natural  right  only  while  water  is  on  the  taker's  land,  70. 
Difference   between    the  right  to  take   standing   and  flowing 

water,  70. 
Right  to  take  water  on  another's  land  an  easement,  70. 
Right  to  take  water  from  artificial  streams,  261. 
Acquisition  of  right  to  take  water,  262. 

Prescription  Act,  section  2,  137. 
Use,  in  exercise  of  natural  right,  must  be  reasonable,  296. 
Supplying  a  gaol  or  lunatic  asylum,  296. 
Ordinary  and  extraordinary  use,  297. 
Use  for  purposes  of  utility  only,  302. 
Irrigation  of  land,  300. 
Irrigation  in  America,  301. 
Use  for  manufacturing  purposes,  302. 
Disturbance  of  right  to  take  water  for  use,  432. 

When  an  action  will  lie,  432. 
Disturbance  of  use  by  pollution,  434.     (See  Pollution  of 
Water.) 
USER. 

In  prescription,  must  be  as  of  right,  113. 

Ignorance  of  or  incapacity  to  resist  user  rebuts  presumption  of 

a  grant,  113. 
Surrounding  facts  to  be  considered,  114. 
See  Non-user. 
USER,    MODE   OF. 
See  Mode  of  User. 

VIEW. 

See  Prospect. 
VOID. 

Grant  to  be  "  void  "  conditionally,  109. 
VOLUNTARY  cessation  of  user,  179. 

WATER. 

Right  to  take  water  an  easement  not  a  profit  a  prendre,  7. 

Water  compared  with  light  and  air,  31. 

Artificial  supply  to  natural  stream,  51. 

Support  for  land  from  underground  water,  40,  226. 


INDEX.  539 

WATER  —  continued. 

Water  in  a  natural  course,  48. 

Support  for  surface  water  from  underground  water,  40. 

Natural  and  artificial  streams,  51. 

Easements  which  can  exist  in  connection  with  water,  48,  56. 

In  an  artificial  course,  48. 

Flow  of  water,  56. 

Purity  of  water,  67. 
Purity  of  water  trickling  over  land,  or  percolating  through  the 
soil,  68. 

Use  of  water  for  consumption,  70. 
Water  collected  in  a  well,  64,  252. 

Springs,  50. 
Water  oozing  through  land  and  collecting  on  surface,  51,  243. 
No  separate  ownership  or  property  in  water,  57,  64. 
Rights  to  pollute  water,  68. 
Right  to  take  water  for  use,  69. 
Natural  right  to  use  water,  69. 

Limit  of  natural  right  to  use  and  consume  water,  70. 
Nature  of  the  right  to  take  water,  70. 
Floods  :  right  to  protect  lands,  59. 
The  sea :  right  to  protect  lands,  59,  60. 
Tidal  rivers  :  riglit  to  protect  lands,  60. 
Right  to  send  water  over  land,  61,  250. 

Obligation  to  continue  sending  such  water,  58,  251. 
Underground  water,  61. 

Difference  between  water  percolating  and  defined  streams, 
58. 

Underground  water  affecting  surface  streams,  61. 
Water  collected  in  wells,  64,  252. 

No  wrong  if  water  is  made  to  escape,  64,  253. 
Disturbance  of  rights  in  water,  422. 
The  American  law,  425,  426. 

See,  also,  Streahs ;  Pollution  of  Water  ;  Use  of  Water; 
Riparian. 
WATERCOURSE. 

Meaning  of  the  word  "  watercourse,"  142. 
Used  in  the  Prescription  Act,  137. 
What  rights  are  included  in  the  expression,  142. 
Disturbance  of  a  watercourse  ;   plaintiff's  own  wrong,  443. 
See,  also,  Streams  ;  Pollution  of  Water  ;  Use  of  Water  ; 
Pouring  Water  over  Land. 


540  INDEX. 

WAYS. 

Owner  of  right  of  way  cannot  prevent  other  persons  passing,  5. 
Public  rights  of  way  not  easements,  8,  72. 
Generally  considered  so  in  America,  10. 
Ways  of  necessity,  25,  76. 

Not  given  in  every  case  of  inaccessibility,  76,  77. 
Public  and  private  ways,  72. 
No  natural  rights  of  way,  72. 
When  easements,  72. 

Effects  as  regards  the  owner  of  the  soil,  73. 
Coexisting  rights  of  way,  75. 
Public  and  private  ways  may  coexist,  75. 
Public  way  over  existing  private  way,  75. 
Private  way  cannot  be  acquired  over  public  road,  75. 
Private  way  not  necessarily  extinguished  by  public  way,  76, 

485. 
Repairs  if  public  way  made  over  a  private  road,  76  (o). 
General  or  limited,  77,  314. 
Prescription  Act,  136. 
Acquisition  of  rights  of  way,  263. 

Private  right  not  acquired  by  dedication,  263. 

Grants  by  general  words,  263.     (See  General  Words.) 

Ways  shown  in  plans  of  property  conveyed,  264. 

The  American  rule  and  doctrine,  265. 

Acquisition  of  ways  of  necessity,  266. 

The  American  law  is  the  same,  269.  ■ 

Acquisition  by  statute  in  some  American  States,  272,  273. 
Only  when  no  other  way  exists,  268. 
Only  when  a  grant  can  be  presumed,  268. 

No  right  gained  on  acquisition  of  land  by  escheat, 
269. 
Grant  subject  to  a  right  of  ploughing,  314  (c). 
Measure  of  right  granted  by  deed,  314. 

Measure  of  right  acquired  by  prescription,  316.  ;i,^ 

Ways  of  necessity  coextensive  with  necessity,  319,  486.  -•': 

Alteration  of  place  of  access  to  a  way,  320. 
User  in  connection  with  the  dominant  tenement  alone  lawful, 

321. 
Cannot  be  assigned  and  made  rights  in  gross,  321. 
Not  universally  true  in  America,  10. 
Right  to  build  over  ways,  329. 


INDEX.  541 

"WAYS  —  continued. 

Who  entitled  to  use  a  way,  324. 

User  to  dominant  tenement,  and  thence  beyond  unlawful,  324. 
Mere  colorable  use  of  dominant  tenement,  324. 
Way  of  leading  to  a  highway,  328. 
The  law  in  America,  329,  330. 
Decreasing  the  width  of  private  ways,  332. 
Gates  and  bars  on  private  ways,  330,  331. 
Distribution  of  right  on  partition  of  dominant  tenement,  337. 
Not  universally  true  in  America,  10. 
Way  becoming  impassable  ;  right  to  deviate,  340. 
Way  periodically  interrupted,  340. 
Temporary  interruption  from  extraordinary  cause,  341. 
Destruction  of  road,  341. 
Want  of  repair,  342. 
Obstruction  by  grantor,  345. 
Right  to  repair  ways,  34G. 
Direction  of  ways,  34G. 
Direction  of  ways  of  necessity,  348. 

Direction  cannot  be  varied,  350. 
Grant  for  continuing  purpose  ;  variation  of  mode  of  user,  351, 

Right  to  apply  modern  inventions,  351. 
Power  to  make  ways  to  be  exercised  reasonably,  352. 
When  an  action  will  lie  for  obstruction,  443. 
Action  by  reversioner,  444. 
Tempovary  obstructions,  right  to  sue,  444. 
Obstruction  of  private  way  over  a  public  road,  445. 
Obstruction  of  private  way  by  an  obstacle  in  a  public  road,  446. 
Ways  of  necessity  cease  with  the  necessity,  486. 
Extinction  on  union  of  seisin,  488. 
Revival  on  severance,  488. 

Ways  becoming  inaccessible  ;  extinction  of  right,  491. 
See,  also.  Public  Ways. 
WELLS. 

No  right  to  uninterrupted  supply  of  water,  64,  252. 
Water  collected  in  a  well,  7,  64,  252. 
Property  in  water  collected  in  a  well,  64,  252. 
No  wrong  if  water  is  made  to  escape,  64,  254. 
WIND. 

Uninterrupted  flow  of  wind  to  a  windmill,  138. 
WINDMILL. 

Uninterrupted  flow  of  wind,  138. 


542  INDEX. 

WINDOW. 

Right  to  make  new  windows  in  buildings,  32. 

Right  to  obstruct  new  windows,  32,  290. 

Improving  the  condition  of  windows  to  obtain  more  light, 
291. 

Shop-windows  ;  light  for  display  of  goods,  216. 
WORDS. 

See  General  Words. 
WRITING. 

Grant  by  writing  not  under  seal  gives  a  license  only,  3,  90. 

Formerly  deeds  alone  called  writings,  3  (d). 


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